Vioxx and the Courts

"A Houston appellate court Thursday overturned a $26 million Angleton jury finding that a 59-year-old triathalete died because of his use of the popular painkiller Vioxx. The 14th Texas Court of Appeals ruled that Bob Ernst's widow, Carol Ernst, should receive nothing because the more than one month of testimony in the nation's fist Vioxx trial contained insufficient evidence to prove the drug caused his heart problem and death. ... [Carol] Ernst ... said that trust took a big blow Thursday, and she feels she was naive about both corporate power and judges. ... Earlier this month, an appellate court in San Antonio overturned a $32 million jury award to a widow in South Texas who claimed her husband had died of a heart attack because of Vioxx. 'We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death and reversed the previous decision for the plaintiff in the first Vioxx case to go to trial,' Bruce Kuhlik, general counsel for Merck, said in a news release. ... Jon Skidmore, a Dallas-based Fulbright & Jaworski attorney ... said 'The court found certain expert testimony by Mrs. Ernst's experts was possibility, speculation and surmise. They didn't find that to be reliable science.' ... Mark Lanier ... [Ernst's attorney] said Thursday he will appeal all the way to the U.S. Supreme Court, if necessary. 'It's pretty rare for an appellate court to take the place of the jury and the trial judge like that,' said a disappointed Lanier. 'Appellate courts in Texas have a reputation of standing up for corporate executives over and against widows and orphans. I'm sure the champagne corks are popping in New Jersey at Merck.' ... Ernst ... said she's been naive about the power of corporations and about how active citizens need to be in electing judges", Houston Chronicle, 30 May 2008.

"Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller. ... The rulings are evidence that some sanity still exists in the tort system--at least at the appellate level. ... This week's verdicts are especially important in the message they send regarding federal pre-emption, the topic of a pending case at the U.S. Supreme Court. ... For drug makers to submit both to the long and expensive FDA approval process and tort suits after approval amounts to a kind of business double jeopardy", editorial at the WSJ, 31 May 2008.

"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.

What evidence would these three "jurists" think sufficient? Kuhlik's affidavit that Vioxx caused Ernst's death? Was Carol Ernst (CE) naive. Another instance of "jurists" usurping the power of the jury. CE and Mark Lanier (ML), let's see if we can recall these "jurists"for judicial misconduct. Don't they take an oath to uphold the US Constitution? Did they ever hear of the 7th Amendment? This appellate decision is disgusting. Skidmore talks of "reliable science". Does that mean whatever Merck's experts say it is? On what basis did the "Vioxx Three" assess evidence credibility? I thought juries do that. Naive me. Having been involved in four lawsuits in my life, I can swear, what really goes on ain't what I saw on the 1957-66 "Perry Mason" show. ML, have I got news for you: appellate courts overturn jury findings of fact every day. Good luck with your appeal. Full disclosure: I have never owned Merck nor had a short position in it.

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.