Results matching “garza”

According to government mortality tables, an 85-year-old male has a life expectancy of another 5.65 years. Unfortunately for Bobbie Izell, who worked in construction in the 1960s and 1970s, he was diagnosed with mesothelioma when he was 85, so his expectancy is a couple of years shorter. A year later, this month, a Los Angeles jury decided that this entitled him to $30 million in "compensatory" damages from ten defendants; coincidentally, the jury also found that the five defendants who were bankrupt or had otherwise settled were only 5% responsible collectively, while the deepest pocket, Union Carbide, was 65% responsible. Another $18 million in punitive damages were awarded against Union Carbide, on the theory that it should have unilaterally stopped selling asbestos in 1967, but didn't do so until 1985. Union Carbide denies liability entirely; the press coverage doesn't give any evidence on that one way or the other, or bother to explain the defendant's likely legitimate grievance. (Though precedent pretends otherwise, a jury that awards an irrational amount of damages almost certainly assigned irrational amounts of liability.) But the $30 million compensatory damages, nearly all of which is non-economic damages, is obviously absurd. What's the point of constitutional limits on punitive damages if the jury can effectively assess punishment twice under the guise of compensatory damages? [Similar on POL in 2006; law.com/NLJ]

Note that we have apparently gotten to the point where a $48 million verdict is dog-bites-man, and not especially newsworthy; this didn't make the Los Angeles Times or national news coverage other than specialty legal papers; the only blogs to cover it are the splogs that are advertising for asbestos attorneys.

The attorneys were from Baron & Budd; press coverage doesn't indicate whether they'd be sharing what would be millions of dollars of their fee with a "chicken catcher" lawyer who did nothing but recruit the client and pass along the file. Press coverage also doesn't indicate whether Izell has made paid claims with asbestos bankruptcy trusts inconsistent with the claims made at trial, or whether the defendants were able to obtain discovery from the trusts.

Texas Supreme Court finishes off Garza v. Merck - PointOfLaw Forum

In a unanimous opinion that is no surprise to readers of Point of Law, the Texas Supreme Court threw out the entirety of the Garza v. Merck Vioxx case Friday on the grounds that the junk-science expert evidence didn't meet the standards of Havner, the Texas equivalent of Daubert. A Texas appellate court had earlier remanded the case for a new trial, discarding the original multi-million dollar verdict on juror misconduct grounds. [Garza v. Merck via Beck; but see criticism from Oliver]

Cases like this demonstrate why it's silly to use purely quantitative counts when trying to determine if a reviewing court is "pro-business." Any reasonable court, given the precedent, would have reached the result the Texas Supreme Court did. But the lower courts made ridiculously anti-business decisions that flouted Texas Supreme Court precedent, with the trial court countenancing appalling juror misconduct. The decision is a victory for business and the rule of law, but if the lower courts had not been anti-business, this case never would have gotten to the Texas Supreme Court in the first place to inflate its "pro-business" statistics. Related.

Vioxx fee-ing frenzy - PointOfLaw Forum

Alison Frankel reports upon Judge Fallon's decision divvying up the nine-digit "common benefit fund" in the gigantic Vioxx settlement. Among the beneficiaries are the attorneys who won the notoriously bogus Garza case in south Texas—though that decision was reversed on appeal, they still get $2.7 million from the common fund. Other attorneys also got millions for winning jury verdicts that were eventually reversed for their "salutary effect on the Vioxx litigation."

Note that the justification for the $1000/hour contingency fees attorneys get in these cases is the risk they take that if they lose they get nothing. Now, it seems, attorneys can get paid even when they bring meritless cases and lose.

This week on 'Outlaw': Dreck - PointOfLaw Forum

The new NBC series "Outlaw" has been getting a pounding from the critics, and sure, the premise is laughable: Strict constructionist Supreme Court justice (Jimmy Smits) has a change of heart when his liberal father dies in a car wreck, so he quits the bench to fight for justice as a pro bono attorney.

Well, not only the premise is bad, the writing is bad, the acting is bad, and the depiction of reality is bad. A Supreme Court justice is kicked out of a casino for counting cards in a six-deck shoe and then has an angry confrontation with a cute ACLU activist amid an anti-death penalty protest, with no security around? And that's in the first three minutes!

Judging from the first quarter-hour, business will be depicted as malevolent. Smits' character, Justice Cyrus Garza, walks down the front steps of a CGI-Supreme Court and enters a limo to speak to a U.S. Senator, a bald, overweight Senator, of course, who says with a scowl ..."Chelsea vs. Intel, Frankl vs. Portland, Manilow vs. 3M. All five-four decisions. Five-four. These are precedent-setting cases, and they all went south because of you."

The Senator tells Garza he's heard the justice may stop the execution of a liberal cause celebre, Greg Beals. He continues the warning: "If this new direction of yours is because of your dad's death, see a therapist. If it's a mid-life crisis, screw your secretary, but do not shift the balance of the Supreme Court. We put you in there, we can take you out. You're at the tipping point here Cyrus. You don't vote the right way on Beals, you're out."

Next scene, Garza is on the bench with his fellow justices and announces, "I'm staying the case of Gregory Beal and sending it back for a new trial ..." In the audience, the Senator scowls.

Nowhere, nowhere, is the question ever answered: Why is Barry Manilow suing 3M?

Fridays, 10 p.m. Eastern, 9 p.m. Central. Must not watch television.

A Texas intermediate appeals court has vacated its May 14 decision, which had dismissed a $7.75 million judgment against Merck & Co. Inc. in favor of Felicia Garza. Ms. Garza had alleged that her 71-year-old husband had sufferred a fatal heart attack in 2001 because he took Vioxx. Ted Frank had commented on the May JNOV on this forum.

The 4th Court of Appeals has remanded for a new trial on two grounds. First, it found juror misconduct because one juror had received a loan from Ms. Garza, and had not disclosed it. That juror had voted with the 10-2 majority in rendering a verdict against Merck -- so it's hard to see how this error harmed the losing plaintiff. More damaging to defendant, however, is a second ground for the new trial -- the Court of Appeals found that its prior holding that Leonel Garza's pre-existing heart problems could not be ruled out as the cause of his death was of no legal consequence. Writing for a three-judge panel, Justice Sandee Bryan Marion concluded that "after reviewing the evidence and considering the appropriate standard of review for a legal sufficiency challenge, we conclude the plaintiffs carried their burden of presenting legally sufficient evidence to support a finding of specific causation." The panel also held that the Garzas' evidence was legally sufficient to support their claim that Merck failed to provide sufficient warning to doctors that Vioxx increased the risk of heart attacks and strokes. The court reiterated its May ruling in Merck's favor on design defect grounds. Given the findings on causation and on failure to warn, it's hard to see how the new trial could be about anything but damages (corrupted because of the juror misconduct). Merck will obviously appeal this to the Texas Supremes.

The Texas Lawyer account of the reversal can be found here.

Per exactly the grounds I predicted, a Texas appellate court has reversed in its entirety the $32 million verdict/$7.75 million judgment in Garza v. Merck (Apr. 23, 2006; Apr. 21, 2006; Aug. 8, 2006 NY Sun op-ed), holding that the expert specific causation evidence was lacking under Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). (Merck & Co. v. Garza (Tex. App. May 14, 2008) and WSJ via Beck). The Ernst oral arguments recently occurred, and one can expect a similar reversal there in the long run.

Garza was one of the plaintiffs intentionally omitted from the Vioxx settlement, so he will take nothing unless the Texas Supreme Court reverses, an unlikely scenario. (Even under the settlement, he would not have been eligible for more than a token $5000 payment, because of the lack of evidence of Vioxx usage.)

That said, the attorneys who brought this meritless, and likely fraudulent, case will likely suffer no disciplinary consequence for inflicting millions of dollars of legal expense upon Merck. It was the nuisance of these legal expenses that forced Merck shareholders to spend $4.85 billion to extract themselves from the meritless litigation.

More: Bloomberg; Reuters; WSJ Health Blog (which has inaccurate trial statistics); WSJ Law Blog.

As I previously noted, plaintiffs had won only 5 out of 32 Vioxx cases scheduled for trial; the Garza reversal reduces that number to 4 out of 32, with the likely promise that the other Texas plaintiffs' verdict will be thrown out as well.

First cracks appear in Vioxx settlement - PointOfLaw Forum

Some follow-up to my earlier post:

  • The settlement is on-line at Merck's website.

  • The settlement does not affect any pending class actions against Merck.
  • Merck does not admit liability; plaintiffs do not admit lack of merit. (� 13)
  • The settlement does not cover cases brought after the settlement: thus, no feeding frenzy or incentive for attorneys to advertise for more claimants to join the settlement. Merck is relying upon the statute of limitations (three years or less in 42 states) to preclude further litigation. (I have some thoughts on this, but because I did statute-of-limitations analysis for Merck as an attorney in private practice, I withhold comment. Needless to say, I do not speak for Merck or its attorneys.)
  • Individual plaintiffs who agree to settle will receive points depending on how much Vioxx they used and the degree of their injury. Administration costs will be funded from interest from the settlement fund. As a closed fund, the Vioxx settlement should not suffer the same problems as the fen-phen settlement did, but that assumes that plaintiffs' lawyers will not pursue claims of latent injury. There is no scientific basis for a theory of latent injury, but that has not stopped a number of claims going forward. Mark Herrmann has a good analysis of why Merck can settle Vioxx cases with more comfort than Wyeth/American Home Products could with fen-phen.
  • The settlement has strong provisions requiring claims to be proveable: evidence of actual Vioxx usage, evidence of actual injury, etc. The fraudulent plaintiffs will not receive much, if anything, and the claims administrator has the power and obligation to audit and investigate fraud (� 10). The question then becomes whether the Leonel Garzas of the world, who were bringing suits against Merck on a lottery basis in the first place, will agree to settle. (The Garza case itself is on appeal, and Merck has not discussed settlement with Garza's attorneys. The Garza case, like the Ernst case and other Merck losses on appeal is excluded from the settlement.)
  • Various plaintiffs' attorney administrative committees have the ability to petition the court for common-benefit fees and costs. (� 9.2)
  • For the settlement to go through, 85% of each of four classes of plaintiffs have to agree to settle; any substantial number of opt-outs among, say, wrongful death plaintiffs, has the potential to crater the settlement. (� 11)
  • Merck tried to contain the number of opt-outs by requiring plaintiffs' attorneys agreeing to the settlement to agree to recommend settlement to all of their clients and attempt to withdraw if they refuse. The provision is problematic under current ethical rules, as suggested by Erichson, Zipursky and Rhode: an attorney's first duty is to his client, and it is unclear how such an attorney can agree with the client's adversary to recommend a particular course of action or to withdraw from the case. But, more realistically, plaintiffs' attorneys, as Nathan Koppel reports, are simply going to ignore the provision. Section 1.2.8 forbids attorneys from cherry-picking: if an attorney submits one client to the settlement program, he or she has to agree to have recommended all of his or her clients, and to withdraw otherwise. But Merck has no realistic means to enforce the provision other than effectively cratering the entire settlement. (Sections 1.2.8 and 1.2.9 permits Merck to "enforce" the provision, but with what remedy, other than forbidding client participation, and making the opt-out problem worse?) And one can imagine some plaintiffs' attorneys gaming the system by referring subsets of their clients to the settlement program through referrals to law firms that act as settlement attorneys (with private agreements to share resulting fees), while cherry-picking the ones they wish to continue to bring suit on. If enough of them do this, the 85% threshhold will not be met, and Merck will have to back off the settlement. Moreover, the severability provisions of the agreement (� 16.4) may end up invalidating the withdrawal provision entirely, as it creates conflicts of interest for attorneys with multiple clients, some with weak cases that should settle, others with stronger cases where the clients might prefer lottery litigation. (Update: Exhibit 1.1, which, if adopted by the courts, would require attorneys to disclose clients in which they have a financial interest, would appear to close the loophole of cherry-picking. An attorney thus must submit all or none of his clients to the settlement. Again, however, this does not solve the underlying problem of conflicts of interest, and it remains unclear how the "recommendation" provision of the settlement would be enforced; I continue to strongly suspect that many clients are mysteriously going to decide to decline the recommendation, and enforcing withdrawal will become problematic. What really stops Mark Lanier from showing up as trial counsel for a new batch of plaintiffs in 2010 once the settlement money has been paid out? What stops another attorney from refusing to submit his clients to settlement, but giving them the option to apply for settlement through another "Enrolling Attorney" while retaining a lien on the recovery?)
  • Regardless, even if the settlement goes through, one can expect Merck to still end up defending hundreds, and more likely thousands of suits, as well as the pending class actions. Merck's press conference indicated that it would continue to fight these.
  • Speaking of class actions, in late October Merck argued for reversal of Sinclair v. Merck, which contemplated the possibility of a medical monitoring class certification. [New Jersey Law Journal]
  • Update: Eric Turkewitz writes to remind us that this is a USA settlement, rather than a global settlement, so there are many unsettled cases pending, including at least a thousand in Australia. Of course, the plaintiffs' Vioxx claims are sufficiently weak that most judicial systems would not countenance them, and it is only the US system's lack of loser-pays, more lenient evidentiary rules, and possibility of unbounded damages that gives them any value here.

Ledbetter v. Merck - PointOfLaw Forum

As earlier reported last week [WSJ Apr. 13; WSJ Law Blog], a Harris County judge has thrown out Ledbetter v. Merck's failure-to-warn claim and stayed 1300 or so other Vioxx cases pending appeal. (Ledbetter herself has other claims pending; the press coverage inaccurately states the entire set of cases are gone.) Contrary to some press and blog reports, the judge's decision, released earlier today, was made not based on the FDA preamble statement to its new disclosure rule, but based on a 2003 Texas statute, Tex. Civ. Prac. & Rem. Code Ann. �82.007, that was apparently ignored by the last two Texas state judges to consider Vioxx cases. (It's possible that the statute doesn't apply to those two cases if they were filed before the statute became law in 2003.) The Texas statute has an exception for fraud-on-the-FDA, but that is preempted by federal law—not by the FDA's recent regulation, but by the U.S. Supreme Court in Buckman, 531 U.S. 341 (2001), which held that fraud on the FDA was a federal inquiry that could only be resolved by federal officials. [Merck press release; WSJ Law Blog]

We'll see what the Texas Supreme Court has to say down the road, but a plain-language reading of the statute would appear to support the claim that all of the Texas failure-to-warn cases against Merck must be dismissed. One would think that this is fatal reversible error in the two multimillion-dollar Texas plaintiffs' verdicts in Garza and Ernst, if those cases were filed after the statute was passed in 2003.

In other Vioxx news - PointOfLaw Forum

  • A Texas judge failed to rule on Merck's motion for a new trial after revelations that a Garza juror who had "interest-free loans" from the plaintiff contacted her several times during the trial. It will be up to the Texas appellate courts to correct the miscarriage of justice. [AP/Law.com]
  • In Madison County, plaintiff's lawyer Andy Birchfield uses the "Dodgeball Vioxx" canard in arguing that Vioxx caused 5'2", 300-pound diabetic Patricia Schwaller's heart attack. [Madison County Record]
  • Meanwhile, the AHA warns about the use of all NSAID pain-relievers. [WaPo]

Garza verdict slashed - PointOfLaw Forum

As expected, the $32 million award granted to Lionel Garza's family by a Texas jury for his fatal heart attack, allegedly caused by Vioxx, has been slashed under state law, down to $7.75 million. The reduction comports with Texas's statutory requirement that punitive damages -- the bulk of the initial award -- cannot exceed 2x economic damages, plus $750,000 over noneconomic damages. In this case, Garza was retired and suffered no economic damages; the jury gave his family a $7 million noneconomic award, and the $750,000 is on top of that.

A couple of observations: first, as Ted pointed out at length in analysing the initial verdict, this is a case in which liability should never have been found. Garza's family offered no hard evidence that he had EVER taken Vioxx, and only alleged that he had taken the drug for less than a month. In addition, he was 71 years old, with high cholesterol, overweight, a smoker, had previously suffered a heart attack, and had undergone a quadruple bypass. Wow. (See our full, extensive prior coverage here.)

The second observation is how punitive damage caps without noneconomic damage caps can be skirted by runaway juries. $7 million in noneconomic damages. Again, wow.

Merck is appealing alleging that one of the jurors had a financial relationship with the widow Garza.

Vioxx: more on Texas jury shenanigans - PointOfLaw Forum

At the WSJ Law Blog, Heather Won Tesoriero reports that "the plot thickens" on those revelations that one of the jurors who awarded Felicia Garza $32 million on her Vioxx claim had accepted between $5,000 and $10,000 in interest-free loans from Ms. Garza since 2003. More details here.

"Vioxx and Corporate Apologies" - PointOfLaw Forum

Professor Elizabeth Nowicki wonders (via Childs) whether a corporate apology (and agreements to settle) are something that is part of a fiduciary duty of a director.

Nowicki's analysis presupposes that Merck has done something wrong other than to be wrong in hindsight, and there doesn't appear to be a case that that is true. (Nor is it the job of the corporate litigator to "'clear' the corporate name" unless that is the primary goal of the corporate client.) But, unfortunately, under the current legal status quo, even if Merck had done something wrong, and was inclined to settle the cases, the scope of corruption in the plaintiffs' bar makes that impossible. In every extra-large scale mass tort settlement to date, the amount of plaintiff fraud has been tremendous, often constituting a majority of the claims. Early indications are that Vioxx is no different. In the Garza, Cona, Rogers, Humeston, and recently voluntarily dismissed federal cases, there were credible allegations that the plaintiff exaggerated (or even faked) Vioxx usage; each of the other plaintiffs in concluded cases to date exaggerated the claims of causation through impermissibly speculative and conclusory expert testimony. If that sort of trend holds up, that means that a majority of the lawsuits filed have severe factual problems even before one gets to the question of whether Merck did anything wrong. Imagine what would happen if Merck replaced the lawsuit process with a settlement process. See also my Apr. 20 post and John Simons, "Merck's got to keep fighting", Fortune, Apr. 25. If there's any corporate fiduciary duty to its shareholders here, it's to fight the lawsuits until the legal system provides a mechanism for policing fraud and punishing, rather than rewarding, the plaintiffs' attorneys who engage in it.

This is bad enough, but the status quo punishes apologies in another way. One could say that Merck's voluntary withdrawal of Vioxx was an apology of sorts, an admission that they were wrong in hindsight. Out of an excess of caution and concern for its patients, it removed the drug from the market. I originally thought that this was a good idea, but now I'm not so sure. At the same time Merck has made its withdrawal from COX-2 sales, Pfizer, facing similar cardiovascular data for Celebrex (celecoxib), a COX-2 inhibitor that works much like Vioxx, has kept its drug on the market, and even resumed marketing it in April, plausibly arguing that the benefits outweigh the costs. (There are second-hand reports of Merck employees continuing to use a secret stash of Vioxx, which suggests the same cost-benefit analysis is true for rofecoxib.) Merck has been sued by over 20,000 groups of plaintiffs, with thousands more likely to sue in the next three months as the statutes of limitations start to expire. Pfizer faces a small fraction of that amount (under 2000 suits to date), and hasn't had its name dragged through the mud the way Merck has. All Merck's overcautious safety has done is prompt the media to single it out and provide free advertising to the plaintiffs' bar. As Merck gets buried by a massive amount of litigation, and gets perversely punished for its commitment to safety, one wonders: will future officers and directors follow the Merck model or Pfizer model of risk aversion? Keep this in mind the next time you hear ATLA argue that lawsuits make consumers safer.

The Garza Vioxx case and the jury system - PointOfLaw Forum

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.

Merck Found Liable - PointOfLaw Forum

The WSJ reports ($$$) that in Texas today, a jury found Merck liable for the death of Leonel Garza, a 71 year old man who died of a heart attack a month after beginning to take Vioxx. Garza had a history of heart disease, undergoing quadruple bypass surgery in 1989. He was a smoker. And Vioxx increases risk of heart attack only after 18 months of use. As Merck attorney Richard Josephson put it: "He had every single risk factor that you can have...The idea that Mr. Garza was in good health and only had a 1% chance of having a heart attack is science fiction..."

Merck has been ordered to pay $7 million in damages.

Breaking: Garza v. Merck Vioxx verdict in - PointOfLaw Forum

A South Texas jury has found Merck liable for the death of a 71-year-old with a long history of heart disease who never took more than a week's worth of Vioxx in samples, and that weeks before his death. More details on Garza this weekend. Peter Lattman is reporting $7 million compensatory and $25 million punitive, though the latter number will be reduced to under a million dollars. The stock market rather quickly mostly shrugged it off.

Vioxx: thoughts on the Blevins statement - PointOfLaw Forum

Sam notes a discouraging word from a plaintiffs' attorney. If you read enough articles about Vioxx, you'll notice a regular theme of plaintiffs' lawyers insisting that shareholder pressure on Merck will force Merck to settle. (Or, perhaps, unmerited bravado about future rulings.) There's a reason for this: they want to create shareholder pressure on Merck that will force Merck to settle. If they repeat it often enough, maybe the financial writers repeat it, then maybe the shareholders start to believe it, and then it happens. A global settlement guarantees billions of dollars of easy profit to the plaintiffs' bar, with lots of money for meritless cases like Cona's and Garza's. The refusal to settle might mean that Merck is saved by appellate court rulings that kill thousands of pending cases.

AP, through reporter Janet McConnaughey, reports:

Monday, Dr. Gregory Curfman, executive editor of the New England Journal of Medicine, [testified that] there had been a connection between the first federal Vioxx trial in Houston and the timing of his journal's publication of an editorial critical of a study used as evidence in that trial, reversing earlier statements.

When I earlier suggested that the timing with the end of the Irvin trial was "fishy," plaintiffs' attorney Evan Schaeffer criticized that analysis.

Curfman was apparently more constrained to tell the truth when he was under oath; his earlier misstatements about the editorial's timing misled the press in its original coverage of the editorial. I think we can guess whether the restatement will get the same level of publicity. Elsewhere in Vioxx litigation:

  • Merck begins presenting is defense in the Irvin case in the MDL in New Orleans today.
  • In New Jersey, Merck filed a motion against the "Frankenstein's monster" of a consolidated trial of two plaintiffs whose Vioxx injury was seventeen months apart. (AP, Feb. 14).
  • In Starr County, the first witness in the Garza case (Jan. 26, Jan. 28) continues her testimony today after a two and a half week break in the trial. (Britney Booth, "Starr County Vioxx trial to continue Tuesday", The Monitor, Feb. 13).

"Legal Strategy for Vioxx to Test Merck" - PointOfLaw Forum

In military tactics, "scorched earth" is the term used to describe the act of burning crops to deny the enemy food. According to the Washington Post, it's also an apt term to describe a corporation that, believing it's unjustly accused of acting negligently, has decided to defend itself in court. Other than the blind adoption of the plaintiffs' bar metaphoric characterization of Merck's insistence on defending itself rather than turning over the keys to the company to trial lawyers, the Post has a good article on the challenges facing Merck over the next few months, and the thought-processes behind tactical decisions. (Brooke Masters, Jan. 27).

Meanwhile, in Garza, the plaintiffs surprised nobody by dropping from the case two doctors who were sued as co-defendants, one of whom never even gave the decedent Vioxx. Press coverage acknowledges that the doctors were put through three years of legal trouble only for the forum-shopping purpose of keeping the case in Rio Grande City state court, a judicial hellhole. (Brittney Booth, "Doctors dropped from Vioxx lawsuit", The Monitor, Jan. 27; AP/Newsday, Jan. 26). More on forum-shopping and Vioxx: Oct. 15; Mar. 28; Overlawyered Jul. 11.

And, oh, by the way, Leonel Garza, Sr.? 71 years old, and "had a 28-year history of heart disease, including a heart attack, quadruple bypass surgery and two heart catherizations. Still, he did not heed his doctors� warnings to exercise and quit smoking." And he had stopped taking Vioxx weeks before he died, but the widow has changed her testimony to claim that medical records are wrong, he received a one-month sample of Vioxx, and that the family threw out the physical evidence. (Brittney Booth, "Plaintiff: Merck & Co. brushed off Vioxx perils", The Monitor, Jan. 26).

Today's Wall Street Journal has a good—if only partial—overview of the problems facing Merck as it tries to defend itself from the feeding frenzy of Vioxx litigation. The Garza case, which began yesterday, demonstrates the logistical challenge: the trial—with its one-week-on, three-weeks-off calendar in a jurisdiction where a third of the jury pool knew the plaintiff's family—was scheduled only three weeks ago, which required a new trial counsel because of a scheduling conflict with the old one. As many as a dozen cases could be tried simultaneously in 2006, and each trial team must be familiar with seven million documents and tens of thousands of pages of videotaped deposition testimony. Meanwhile, the company is distracted from its mission and numerous executives' careers are ruined by the need to spend months sitting in courtrooms, with the concomitant problem that witnesses get "stale" after repeated use, and a single in-trial or in-deposition mistake by a witness will get used against that witness in all future trials. (Heather Won Tesorio, Jan. 26; AP, Jan. 24). But, as not mentioned in the Wall Street Journal article, Merck has little choice but to defend itself if it is to avoid the problems of Wyeth, which paid billions in phony fen-phen settlements in the mistaken belief that settling cases would end its litigation troubles.

Elsewhere in the Vioxx case, Merck deposed New England Journal of Medicine editors today, who have been placed on the plaintiffs' trial-witness list in the Plunkett retrial. Derek Lowe comments; our earlier coverage: Dec. 8, Dec. 10, Dec. 16, and Jan. 8.

Benjamin Zipursky of Fordham University School of Law writes for Jurist that the Vioxx litigation "serves once again to expose numerous serious shortcomings in our system."

Garza v. Heart Clinic, a Texas state case with an even weaker theory of causation than the first three trials (Jan. 11), starts today in the judicial hellhole of the Rio Grande Valley. (Lynn Brezosky, "Plaintiff paradise waits for Vioxx trial", AP, Jan. 22). However, the court is convening only four days a month, so the retrial of Plunkett v. Merck, which begins February 6 in New Orleans, will probably reach verdict first. Mark Lanier will try his second case starting February 27 in New Jersey before Judge Higbee. (Brenda Sapino Jeffreys, "A New Obstacle for Vioxx Case Attorneys: an Intermittent Trial Schedule", Texas Lawyer, Jan. 23).

Elsewhere in the world of Vioxx litigation, a Missouri state-court class action embarrassed itself when it discovered that the named plaintiff had never actually taken the drug. A new named plaintiff, presumably equally compliant with the attorneys really directing the litigation, was substituted in, and the Eighth Circuit has held that this substitution does not constitute a "commencement" for purposes of the Class Action Fairness Act. (Plubell v. Merck (hat-tip to A.T.)).

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