Mark Lanier and other plaintiffs lawyers are giving a series of interviews where they complain that the Ernst v. Merck decision (discussed yesterday) is “judicial activism that reinterprets the evidence.” (E.g., in Texas Lawyer.) This is nonsense. Ernst follows well-stated precedent. Indeed, I predicted precisely this result and precisely the case the appellate court would use to strike down the decision the week of the jury’s verdict.
Here’s what the appellate court said yesterday:
An expert’s bare opinion will not suffice to support a jury’s verdict. Merrell Dow Pharm. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). … Causation opinions based on possibility, speculation, and surmise are no evidence. Havner, 953 S.W.2d at 711-12. Expert opinions must be supported by facts in evidence, not conjecture. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003).
… Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infarction triggered by a blood clot.
Here’s what I wrote for Point of Law in 2005:
Texas effectively adopted a Daubert-like standard in Merrell Dow v. Havner. Havner presented the same fact-pattern as Ernst: an expert testifying based purely on speculation and conjecture that a drug was responsible for causation. The Texas Supreme Court noted “Reasonable probability cannot be created by the mere utterance of magic words by someone designated as an expert.” A reasonable appellate court is going to strike the expert testimony, and reverse the case for retrial, and might even grant judgment for the defendants. … It might have to get to the Texas Supreme Court before a reversal happens, but I think it will.
Now if we are holding this discussion in the Greek agora, Cephalus raises his hand and says, “But, Socrates, isn’t there a Daubert opinion out there that says experts are not allowed to have this sort of testimony out there?” And I would say, “You know something? You are absolutely correct. They are not.” And the Fifth Circuit said that; the Supreme Court said that; the Texas Supreme Court has said that. And where the plaintiffs have won in the federal court and in the Texas courts, those cases are going to be reversed. I cannot promise you that with 100 percent certainty, but I’m very confident that you are going to see reversals there.
The real judicial outrage was the trial court’s failure to throw out the case in the absence of qualified expert evidence. Mark Lanier’s statements alleging that the decision is a result of campaign contributions are arguably a violation of Texas Disciplinary Rule of Professional Conduct 8.02.
Lanier had to have an inkling this result was coming given (1) that he settled the Vioxx litigation for pennies on the dollar; (2) that he stalled for several months before asking for a final judgment, though such a maneuver would have cost his client hundreds of thousands of dollars if she were ultimately successful; and (3) the fact that Garza v. Merck was tossed on the same grounds just a few weeks ago.
Vioxx plaintiffs’ expert evidence simply doesn’t meet Texas or federal standards of law. Indeed, that’s why so many cases were brought in New Jersey state court, where expert evidence standards permit for-hire experts to give ipse dixit reports to the jury, regardless of scientific basis; the risk that punitive damages under New Jersey state law would be preempted by Buckman (as has now happened) was outweighed by the need to get in junk science evidence to have a chance of winning a case.