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The Garza Vioxx case and the jury system



If you've been relying entirely on AP or national press coverage of the Garza case, you perhaps do not realize what a giant miscarriage of justice it is.

Not just that, by the Garza's own theory of the case, Leonel Garza had been taking Vioxx for under a month.

Not just that Leonel Garza was a 71-year-old smoker who was overweight, had high cholesterol, and previous had both a heart attack and a quadruple bypass, yet was awarded $7 million in "compensatory" damages.

But the fact of the matter is that there is no documentary evidence that Garza was even taking Vioxx. Garza never had a prescription for Vioxx. Garza's widow testified that Dr. Michael Evans gave her husband an eight-day sample of Vioxx in a brown vial, and that then Dr. Juan Posada gave her husband two vials filled with fifteen pills each and told him to return in 30 days. (Conveniently, Garza's son testified he threw away the brown vials—though he said precisely the opposite in his deposition.) In turn, Posada testified that he never gave out thirty days worth of Vioxx, and never gave Vioxx to Garza; Evans testified he gave out samples only in eight-pill blister-packs. (Not only that, the widow's testimony contradicted her deposition testimony; she claimed at trial her memory was better now.) (Brittney Booth, "Garza�s widow ends plantiff testimony in Starr County Vioxx trial", The Monitor (McAllen), Apr. 11; Brittney Booth, "Sons take stand in Merck trial", The Monitor (McAllen), Mar. 16). Even if Evans gave Garza an eight-day sample, Vioxx takes only five days to be completely removed from the bloodstream; it would have been physically impossible for the Evans samples to have caused Garza's heart attack.

None of the post-verdict press coverage has explicitly mentioned how damning the evidence was against the Garzas' case; only Alex Berenson's New York Times article even hinted at it.

Mr. Garza's family was well-known in Starr County, where the case was tried; a huge percentage of the jury pool indicated they knew his family. But Merck failed in its efforts to remove the case to a federal court where the case could be tried fairly, because the plaintiffs had fraudulently joined the two doctors as defendants, even though they dropped them from the case.

The family tried other measures to inflate damages: "Garza�s daughter from his first marriage, Gloria Rendon, was included in the lawsuit, but the judge did not include her in the jury charge based on her testimony. Rendon had only met her father a few times and told the jury she participated in the lawsuit only to support his family, and was not interested in the verdict." (Brittney Booth, "Jury rules in favor of Vioxx plaintiff", The Monitor (McAllen), Apr. 22).

Cases like Garza show that Merck's potential liability goes far beyond the people who took Vioxx. Out of the six people whose cases have been tried so far, two of them reasonably appear to have substantially exaggerated their Vioxx usage for trial purposes.

Merck now faces 11,500 personal injury lawsuits over Vioxx involving 23,300 separate plaintiffs.

Garza and Hamby v. DaimlerChrysler are both cases where the evidence was overwhelming against liability, but a hometown jury awarded millions to a plaintiff on the scintilla of evidence or absurd theory needed to defeat the stringent standards for summary judgment. Cases like that make me despair: are there any folks out there who want to claim that these verdicts represent the jury system working well? (There comes a point where they stop being "outliers" when two Texas Vioxx juries in a row disregard the evidence and two Texas judges in a row disregard the state's Daubert rules.) Perhaps they'll be reversed on appeal between the overwhelming evidence in both cases plus the junk-science testimony in Garza. But they shouldn't have to be, and a defendant shouldn't have to lay out hundreds of thousands (if not more) to defend themselves in flimsy cases like these, much less be at risk for outrageous damages.

Update, April 25: Welcome, Volokh readers. This post is only one of a series of posts on the Vioxx litigation by the Point of Law authorship. Check also my AEI working paper (and Part II) from December, which has more factual and legal background, especially on the question of Texas expert evidentiary standards.

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.