Jury finds Merck not liable for Schwaller's death

Steve Gonzalez Mar. 27, 2007, 4:56am

Merck attorney Dan Ball

Plaintiff's attorney Andy Birchfield

Plaintiff's attorney Mikal Watts

A Madison County jury returned a verdict in favor of Merck this morning.

The jury rejected plaintiff's claim that Patricia Schwaller's sudden heart attack at age 52 was caused by taking Vioxx.

Plaintiff's attorney Mikal C. Watts of Corpus Christi, Texas, had been seeking an award of tens of millions of dollars for his client Frank Schwaller of Granite City.

The verdict was returned after a four-week trial.

Merck attorney Dan Ball of Bryan Cave in St. Louis said he was very pleased with the outcome.

"We believe the evidence showed that Merck acted responsibly and Vioxx was not the cause of Mrs. Schwaller's tragic, sudden cardiac death," Ball said.

"Mrs. Schwaller had multiple risk factors for sudden cardiac death including a family history of heart disease as well as diabetes, high blood pressure and morbid obesity," he added. "Unfortunately, the combination of these risk factors put her at increased risk for sudden cardiac death having nothing to do with Vioxx."

Kenneth Frazier, executive vice president and general counsel for Merck, also was obviously pleased with the verdict.

"Plaintiffs have the burden of proving their claims and we believe these claims are best suited for individual review," Frazier said. "Our strategy has now resulted in 10 favorable jury verdicts and more than 4,000 plaintiffs dismissed.

Plaintiff's attorney Andy Crouppen of Brown & Crouppen in St. Louis said he was very disappointed and plans to appeal.

"The verdict was not fair and a higher court will render justice," Crouppen said. "I have the utmost respect for the jury system but it's not perfect and clearly something went wrong."

Brown & Crouppen, which has filed a high volume of Vioxx suits in Madison, St. Clair and Cook counties, said the firm will continue to aggressively pursue other pending cases.

In a press release issued after the verdict, Crouppen stated, "Today, at least for the moment, Goliath bested David. That doesn't even sound right does it? Let me promise you this. There will be an appeal of this verdict and our unshakable belief is that a higher court at a future time will grant a fair and just resolution to the Schwaller family."

One of the jurors, Joyce Landre of Fosterburg, said attorneys for the plaintiff used information out of context during the trial.

She said the jury did see faults with Merck but not in Schwaller's case. Landre did not elaborate.

A juror from Alton who asked not to be identified said the appropriate focus for plaintiffs' attorneys should have been on Mrs. Schwaller's relationship with her primary care physician, Dr. Tibor Kopjas. Instead, the plaintiffs' attorneys spent too much time during the four-week trial attacking Merck, she said.

Ball responded to Crouppen's statement that he would appeal the verdict.

"I do not believe they had any significant rulings against them," he said, "so I question any strength of their appeal."

Monday afternoon two alternate jurors excused from duty said that it would take a lot of convincing for them to rule in favor of the plaintiff.

They also said they would be shocked if the remaining jurors came back with a plaintiff's verdict.

The male jurors, who asked not to be identified, spoke openly about their experience and their perspectives for about 30 minutes after being excused.

Jurors were sent yesterday afternoon to decide whether Vioxx caused the sudden heart attack death of Patricia Schwaller in 2003. She was 5 feet, two-inches tall, weighed 280 pounds and had several health problems, according to testimony. Her husband Frank Schwaller filed suit in 2005.

One of the jurors said that Patricia Schwaller had too many health risk factors to find proximate cause. He works at Olin Corp. -- the same place where Frank Schwaller was employed before he went on disability,

The other juror said there was "no way" he could find for the plaintiff.

The excused jurors also said that testimony from a videotaped plaintiff's witness, Dr. Jerome Aborn, raised credibility issues.

They also had doubts about testimony from Dr. Mark Furman. Furman testified that Schwaller's risk factors, including morbid obesity, sedentary lifestyle, high blood pressure, high cholesterol and diabetes, played only a 1 percent factor in her risk for heart attack.

He also lost credibility with these jurors when he failed to mention Schwaller's obesity and diabetes during his testimony. During cross examination he said that was "an oversight."

The jurors were also troubled by plaintiffs' attorneys selective display of portions of emails between Merck officials. They said they only got the full context of the meaning of the communications after defense attorneys put things in perspective.

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