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Texas Jury Renders First Verdict in Vioxx Cases
Following a lengthy and well publicized trial in Brazoria County,
jurors voted 10-2 to hold the pharmaceutical company, Merck, liable in a
wrongful death suit involving the arthritis painkiller, Vioxx. This is the
first of many cases for Merck involving Vioxx, and the decision stands to
profoundly affect thousands of other cases currently filed against the
company.
In this case, plaintiff Carol Ernst claimed Vioxx was responsible for
the 2001 death of her 59 year-old husband, Robert Ernst, who was taking
Vioxx at the time he died of a heart attack. Merck's attorneys argued that
Vioxx did not cause the death as arrhythmia had not yet been linked to
Vioxx.
Jurors awarded the plaintiff $253 million in total damages — $24
million for mental anguish and loss of companionship and $229 million in
punitive damages. It is expected that the punitive damages award will be
reduced based on the applicable cap under Texas law, and Merck has
indicated an intent to appeal, challenging expert testimony for the
plaintiff and arguing that the plaintiff failed to meet the Texas law
standard to prove Vioxx caused the death.
More than 20 million people have used Vioxx since the September 2004
recall, and 4200 product liability lawsuits representing 7500 plaintiff
groups have been filed against Merck. On September 12, jury selection is
scheduled to begin for the next case in the New Jersey Superior Court in
Atlantic City. This case involves a heart attack survivor and is the first
of numerous cases filed in New Jersey, headquarters for Merck.
Recent Successes
Strasburger was not involved in the Ernst Case,
but our recent successes include:
- Texas Supreme Court decision declaring that claims against hospitals
for improper credentialing of physicians are "health care liability
claims" under the Texas medical malpractice statute, art. 4590i.
Garland Community Hospital v. Rose,
156 S.W.3d 541 (Tex. 2004). The Supreme Court accepted our appellate
team's argument that credentialing is a continuous process which occurs
and has effects "during the patient's treatment" as required by the
statute. It is now settled that plaintiffs alleging negligent
credentialing must satisfy the significant procedural requirements
applicable to medical malpractice claims.
- Strasburger attorneys recently achieved a favorable appellate
decision for Texas Mexican Railway Company. The case involved a fatal
collision at an unmarked railroad crossing on a ranch in south Texas.
After the evidence was presented at trial, the Duval County jury
returned a no liability verdict. The plaintiffs appealed, claiming
errors in evidentiary rulings and the charge by which the court
submitted the case to the jury. The San Antonio Court of Appeals
unanimously affirmed the take nothing judgment.
Recent Texas Supreme Court Decisions
- Garza v. Exel Logistics, Inc.
(4/8/2005): A temporary worker may be an employee of the customer,
but the customer may not necessarily be covered by the temporary
agency's workers' compensation policy.
- Excess Underwriters at Lloyd's, London
v. Frank's Casing Crew & Rental Tools, Inc. (5/7/2005):
An excess insurer's right of recoupment may exist if there is no
agreement for recoupment.
- Austin Nursing Center, Inc. v. Wilson
(5/13/2005): and Lorentz v. Dunn
(5/13/2005): Estates have legal capacity to sue.
- Battaglia v. Alexander
(5/27/2005): This case settles the issue of how prejudgment
interest is to be calculated under section 16.02 of former 4590i, when
there has been a settlement, and therefore, the proportionate
responsibility provisions of the Civil Practice and Remedies Code must
be applied.
- In re Nexion Health at Humble, Inc.
(5/27/2005): The Federal Arbitration Statue preempts the Texas
statue in wrongful death case, negating the Texas requirement that a
party agree to arbitration in a personal injury case.
- Hoffman-La Roche Jac v. Zeltwarger:
A plaintiff may not recover for intentional infliction of emotional
distress based on the same facts that support a sexual harassment award
(reversing a $9.5 million award in employment case so as to prevent
double recovery).
New Legislation
- SB 290: Effective June 9, 2005,
the legislature amended TEX.CIV. PRAC. & Rem. Code §33.012(B). The
dollar-for-dollar settlement credit (not the percentage credit election
previously adopted as part of tort reform) is now universally,
automatically applied to all non-medical liability civil cases, without
the need for an election. This statue applies to all cases (pre-2003 and
post-2003 tort reform) pending on June 9, 2005 and in which the trial,
or any new trial or retrial following motion, appeal, or otherwise,
begins on or after June 9, 2005.
- HB 1572: Allows insurance
companies to sue for (and maybe even collect) attorney's fees and costs
in cases where they have paid claims and have a subrogation interest
against an uninsured motorist. It also allows said insurance companies
to subrogate against an uninsured motorist to recover PIP paid.
(Otherwise, insurance companies have no right to subrogation for PIP
payments. Article 5.06-3, Subsection (c), Texas Insurance Code).
- HB 107 "Cheeseburger Bill": HB
107 amends the Texas Civil Practice & Remedies Code by adding Chapter
138, PERSONAL RESPONSIBILITY FOR FOOD CONSUMPTION. It provides that
producers and sellers of food are not liable under any law of the state
for claims arising out of weight gain or obesity. It takes effect on
September 1, 2005, but provides that any action prohibited by the act
and filed after June 1, 2005, shall be dismissed.
- HB 2868 Overrules Reeder v. Daniel,
61 S.W.3d 359, 364 (Tex.2001): HB 2868 has legislatively overruled
Reeder v. Daniel, concerning social host liability for minors. The
bill provides that (i) there is liability when someone 21 years of age
or older knowingly serves or provides any alcohol to a minor (person 17
years of age or younger) who then causes harm; (ii) but parents and
guardians are excluded from social host exposure. Section 2.02 of the
Alcoholic Beverage code is amended by adding Subsection (c). This change
in law applies only to a cause of action that accrues on or after the
effective date of the act, which is September 1, 2005. A cause of action
that accrues before the effective date of the act is governed by the law
in effect immediately before that date, which would be Reeder v.
Daniel, wherein the Texas Supreme Court held that it would not
create a civil cause of action against social hosts for violating
TEX.ALCO.BEV.CODE Section 106.06.
Personal Injury Practice Overview
At Strasburger, the Personal Injury
Practice Area has extensive experience involving the defense of
personal injury and property damage claims including negligence, gross
negligence, products liability, professional liability, workplace
injuries, accidents of all types, and intentional tort claims. Our
personal injury attorneys
handle cases in both state and federal courts across Texas, as well as
cases extending beyond the Texas border. This nationwide expertise
provides a direct benefit to clients by allowing Strasburger attorneys to
serve as both regional and national counsel. Strasburger litigators
aggressively investigate and defend all types of personal injury claims,
while continually working to serve the client's best interests through a
summary judgment, an advantageous settlement, or a favorable result at
trial.
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