Mikal Watts

Dan Ball

After closing arguments are heard Monday in Madison County's first Vioxx trial, jurors will begin deciding whether Patricia Schwaller's use of the pain relieving drug caused her death.

Attorney Mikal C. Watts wrapped up the case for Schwaller's husband, plaintiff Frank Schwaller, early after lunch recess. Schwaller, of Granite City, claims his 52-year-old wife died of a sudden heart attack after using Vioxx.

He has been present for most, if not all, of the trial.

Merck attorney Dan Ball is expected to deny that the drug maker failed to adequately warn about the alleged dangers of Vioxx and deny that Schwaller's use of Vioxx was the proximate cause of her death.

Jurors will be given a lengthy set of instructions to help them determine a ruling in favor of Schwaller or Merck.

"You will decide which facts have been proven," the juror instructions state.

"You should consider all the evidence without regard to which party produced it. You may use common sense, gained from your experiences in life, in evaluating what you see and hear during trial."

Jurors are encouraged to rely on their notes taken during trial, but told not to share them with others on the panel. They are also told that it's okay to rely on memory of evidence.

"If your notes conflict with your memory, or if someone else's notes conflict with your memory, you are free to use your own memory of the evidence," the instructions state. "Just because a juror has taken notes does not mean his or her memory of the evidence has any more weight or impact than the memory of a juror who has not taken notes."

Instruction Number 9 goes to the heart of the case, itemizing the burden of plaintiff's proof. In order for jurors to find for Schwaller, plaintiffs' attorney must have proven:

(1) Merck failed to adequately warn Patricia Schwaller's primary physician Dr. Tibor Kopjas about the alleged dangers of Vioxx to patients like Mrs. Schwaller, and that at the time Mrs. Schwaller was taking Vioxx, Merck knew, or in the exercise of ordinary care should have known about these alleged dangers;

(2) Merck's failure to adequately warn Dr. Kopjas of these alleged dangers made Vioxx unreasonably dangerous to patients like Mrs. Schwaller;

(3) Merck's failure to adequately warn Dr. Kopjas of these alleged dangers to patients like Mrs. Schwaller, and her use of Vioxx, was a proximate cause of Mrs. Schwaller's death.

"If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff," the instructions state. "But if, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved, then your verdict should be for the defendant."

"Additionally, Merck has the burden of proving its claim that Dr. Kopjas, at the time he prescribed Vioxx to Mrs. Schwaller, knew of these alleged dangers to patients like Mrs. Schwaller," the instructions state. "However, the failure of a prescribing physician to learn of the risks of a drug from other sources does not relieve the manufacturer of liability for harm resulting from its own failure to adequately warn."

More News