Plaintiff Who Lost Madison County’s Only Vioxx Trial Wants Piece of Settlement Pie

posted on:
November 21, 2007

author:
Steve Gonzalez

Madison County Circuit Judge Daniel Stack may never get to decide whether Frank Schwaller will receive a new trial over his wife’s death. 

Last week, Stack stayed any further proceedings while attorneys for Schwaller see if they qualify for any of the largest pharmaceutical settlement in history.

Merck has agreed to pay $4.85 billion to resolve certain Vioxx-related claims involving plaintiffs who suffered a heart attack or a stroke.

However, the Schwaller case may prove to be unique because on March 27 a seven-woman, five-man jury rejected Schwaller’s claim that his wife’s sudden heart attack at age 52 was caused by taking Vioxx.

Schwaller filed suit in 2005 alleging that Vioxx caused or significantly contributed to Patricia Schwaller’s death after she used the drug for a little over 18 months for shoulder pain.

John Driscoll, of Brown & Crouppen in St. Louis, argued Oct. 31 that his client Frank Schwaller of Granite City deserved a new trial because new evidence showed Vioxx to be dangerous after just taking the pill one time.

Driscoll cited an Oxford study that was published in the New England Journal of Medicine on July 26.

According to Driscoll, the study concluded that that the risk of cardiovascular injury or death from Vioxx increased from the start, rather than 18 months as Merck’s charts showed a Madison County jury in Scwhaller’s case.

Driscoll also argued that Stack did not weigh all evidence when granting a directed verdict for Merck on one count of defective design during trial.

Merck’s attorney, Dan Ball of Bryan Cave in St. Louis, argued that Schwaller could not have prevailed on a design defect claim even if it was submitted to the jury.

The jury filled out a special interrogatory and found that Mrs. Schwaller’s use of Vioxx did not proximately cause her sudden cardiac death.

Ball said that the Illinois Supreme Court has repeatedly held that where a jury’s special interrogatory answer expressly finds a plaintiff has failed to prove an essential element on their cause of action, they are not entitled to a new trial based on alleged errors unrelated to the jury’s finding on the essential element.

In the end, none of arguments or jury verdict will make a difference in the case.

Two of Driscoll’s co-counsel in Schwaller’s case, Andy Birchfield and Leigh O’Dell of Beasley Allen played an integral role in the development of Merck’s settlement agreement.

According to a press release issued by the firm, the settlement funds will be allocated among thousands of qualifying claims based upon an evaluation of each qualifying claimant’s medical records by a claims administrator.

It is estimated that thousands personal of injury lawsuits have been filed. Discovery has been ongoing in consolidated cases throughout the country since 2001. Over 50 million pages of documents have been produced and reviewed. More than 2,005 general depositions have been taken thus far. Thousands of motions have been filed and considered. Hundreds of experts in cardiology, pharmacology, neurology and other disciplines have been consulted.

Nineteen trials have taken place between August 2005 and September 2007 with mixed results, including defense verdicts, plaintiff’s verdicts, hung juries and retrials.

More than 11 months ago in December 2006, Judge Eldon E. Fallon of the Federal Court in New Orleans in consultation with coordinating Judges Victoria Cheney of the Los Angeles Superior Court, Judge Carol Higbee of the New Jersey Superior Court and Judge Randy Wilson of the Harris County, Texas District Court directed Merck and plaintiffs to begin confidential negotiations.

For plaintiffs, the judges appointed a six-member negotiating committee which included representatives from each coordinating state, the MDL Executive Committee and a member of the MDL Steering Committee at large.

Merck designated a like number of negotiators, and the two groups were directed to seek a potential resolution of filed and tolled cases in which claimants alleged that they or loved ones had suffered heart attacks, ischemic strokes or sudden cardiac death as a result of Vioxx ingestion.

Negotiating teams met in more than 50 sessions in New Orleans, Montgomery, Ala., Washington D.C., New York, Philadelphia, Los Angeles, St. Louis and Houston.

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