"Carol Ernst, whose 59-year-old husband Bob died of heart problems after taking the drug Vioxx for nine months, must be wondering what it takes to win a verdict in a damages suit these days. ... On Thursday, a three-judge appellate court panel in Houston found that the expert testimony presented in the trial on behalf of the plaintiff did not prove Vioxx caused his death. The judgment was overturned, and Ernst will receive nothing. She and her lawyer, Mark Lanier, intend to appeal. ... More and more Texans are learning that trust is misplaced in a court system inclined at the higher levels to protect the interests of business over consumers. ... Rather than encouraging Merck to do what's right, the 14th Court's decision in the case risks emboldening the company to rely on judicial friends in high places to overrule judges and send widows home empty-handed", my emphasis, Editorial at the Houston Chronicle, 1 June 2008.
No, WSJ, the one-two punch was delivered to the 7th Amendment. Double jeopardy? That only applies in criminal cases. Even there, the concept of "dual sovereignity" applies. Huh? A bank robber may be charged by the state and federal government for the same action. Similarly a street level drug dealer. Why is an incorporated drug dealer exempt from state tort suits? This is one of the worst pieces of WSJ special pleading I've read in a long time. Get out your crying towel for Merck. The most I can see is: FDA "approval" is just expert opinion which is admittable for jury consideration, like other expert opinion. That drug companies can use FDA approval to immunize themselves against lawsuits is insane in my opinion. On what basis can the FDA grant sovereign immunity? This is another example of Bush adminstration ignoring state's rights when it suits big business. I have no more confidence in the FDA than the SEC, OFEHO or the DOJ.
I agree with the Chronicle. ML, if you want to win your appeal, figure out how to frighten the Texas Supreme Court into reinstating the verdict. The facts and law in your appellate brief won't matter. Saying stuff like "clearly erroneous standard" may sound nice in law school, but in the real world means nothing. If the judges who hear the case believe their failure to reinstate the verdict will make the public lose faith in "the system" they will reverse and figure out their rationalization later. That's the way it really works as Oliver Wendell Holmes taught us.