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Texas Appeals Court Does About-Face in Vioxx Case
Texas Lawyer
December 12, 2008
In an about-face, the 4th Court of Appeals has vacated its May 14 decision that tossed out a $7.75 million judgment in Merck & Co. Inc. v. Garza, a case in which Felicia Garza alleged that taking the prescription drug Vioxx caused her 71-year-old husband to suffer a fatal heart attack in 2001.
Acting on the plaintiffs' motion for rehearing, a three-justice panel of the 4th Court issued a new opinion Wednesday that reverses the 229th District Court's judgment and remands the case for a new trial because of "juror misconduct."
According to the opinion, juror Jose Manuel Rios received interest-free loans totaling $12,700 from Felicia Garza over a six-year period beginning in 2000 but did not disclose that personal financial relationship during voir dire.
As noted in the opinion, Rios voted with the 10-2 majority in rendering a verdict against Merck. A message left at a Rio Grande City, Texas, telephone listing for a Jose M. Rios was not returned.
A Wednesday press release from McAllen, Texas' Escobedo, Tippit & Cardenas, which represents the plaintiffs, states that no attorney asked the juror before trial whether he had any financial relationship with the parties but that the juror did disclose the information when he was specifically asked the question after trial.
The 4th Court also reversed its May 14 holding that Leonel Garza's pre-existing heart problems could not be ruled out as the cause of his death. Justice Sandee Bryan Marion wrote for the panel 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."
Justices Catherine Stone and Phyllis Speedlin joined in the opinion. Merck's attorney, Baker Botts partner Stephen Tipps of Houston, says, "The court totally reversed its position on specific causation. We believe and continue to believe it got it right on specific causation in May and that its new opinion on specific causation is wrong."
Merck spokesman Ron Rogers writes in a statement that the company is considering its options for appeal on the specific causation issue.
The 4th Court also held that the plaintiffs' evidence is legally sufficient to support their marketing defect claim that Merck failed to provide proper warning to doctors who prescribed Vioxx that the painkiller increased the risk of heart attacks and strokes.
But the 4th Court ruled in Merck's favor on the plaintiffs' design defect claim.
Luis Cardenas, an attorney for the plaintiffs and partner in Escobedo Tippit, says his clients are going back to trial with an appellate court's ruling that vindicates their proof and evidence. "That's a great starting point," Cardenas says.
This article first appeared on Tex Parte Blog.
