Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)

Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).

Only the Houston Chronicle notes (and then in passing) that the case is in state court, rather than federal court, because Lanier also sued a Texas doctor and research clinic, and then dropped them from the case, and even the Chronicle fails to mention the tactics behind such behavior. (Richard Stewart, “Widow’s suit against Vioxx maker to set tone for rest”, Houston Chronicle, Jul. 4). Plaintiffs’ attorneys often sue in-state defendants they have no intention of bringing to trial to avoid federal diversity jurisdiction and more stringent federal rules for evidence and jury selection. Though fraudulent joinder is not allowed to divest a federal court of jurisdiction, most courts permit the tactic without penalty under a statutory loophole except in the most obvious and egregious cases. See the Mar. 28 entry on our sister site, Point of Law for more.

Meanwhile, a Canadian expert advisory panel voted 12-1 to recommend that Canada permit the prescription of Vioxx because the benefits outweigh the cardiovascular risks—which the panel characterizes as no worse than that from ibuprofen, sold over the counter in the United States. (“Health Canada responds to Expert Advisory Panel on COX-2 drugs”, Medical News Today, Jul. 8; Report of the Expert Advisory Panel on the Safety of Cox-2 Selective Non-steroidal Anti-Inflammatory Drugs (NSAIDs), Jul. 6 and summary).

Tom Kirkendall comments on his blog about the upcoming trial. (Further coverage: Jul. 15, Jul. 29, Aug. 19 ($253 million jury verdict).)

Disclosure: At my former firm, I performed legal work for Merck in other Vioxx cases. As with all my posts, I speak for myself, and not for my current employer, my former employers, nor my former clients.

Filed under: jury selection, Mark Lanier, product liability, Texas, Vioxx