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Mark Lanier's curious tactic in the Ernst v. Merck Vioxx litigation

It's been nearly three months since Mark Lanier won a $253 million verdict in Ernst v. Merck in the ongoing Vioxx litigation. But, curiously, the plaintiff hasn't moved to enter the judgment. A plaintiff's attorney (Evan?) can perhaps correct me, but the stereotype is that the plaintiff wishes the case to move as quickly as possible, while a defendant seeks delay, because the plaintiff hopes to get the money in the pocket sooner, rather than later.

I can think of only one reason why there has been no motion to enter judgment: Lanier has a strong expectation that his illegitimate verdict in Ernst will be reversed on appeal, and he's hoping that there will be more plaintiffs' verdicts on record before that happens. The chess master Nimzovich famously said of a move that "the threat is stronger than the execution." Such may be the case here: so long as there is a $253 million verdict in place, that gets the headlines, attracts clients (Lanier is competing with the lead plaintiffs' attorneys in New Jersey and the MDL, and may be angling for a lucrative seat at the table), and creates investor pressure on the company. Once that verdict is turned into a $26 million judgment (after punitive damages caps) or a $0 reversal, or even if investors and reporters see what Merck will file as an appellate brief, Lanier looks like much less of a hero. In the worst-case scenario for him, an appellate court reverses Lanier's most famous verdict before he has the chance to be elected to the Senate.

Perhaps I'm wrong, and Lanier has other reasons for not zealously representing Mrs. Ernst and trying to get her winnings as soon as possible than the sort of conflict of interest I'm describing. But perhaps a curious reporter might raise the question with Lanier the next time they go to him for a soundbite about the merits of the federal litigation that begins tomorrow.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.