MADISON - ST. CLAIR RECORD

An attorney for Merck Pharmaceutical says that the plaintiff who lost Madison County's first Vioxx trial in March should not be granted a new one.

Dan Ball of St. Louis argues that Frank Schwaller, whose wife Patricia died after taking the pain-reliever, could not have prevailed on a design defect claim even if it was submitted to the jury. He said that proximate cause is an essential element of a design defect cause of action, but the jury rejected the notion that Vioxx was proximate cause.

"In an answer to a special interrogatory, the jury found that Mrs. Schwaller's use of Vioxx did not proximately cause her sudden cardiac death," Ball wrote in his motion filed Aug. 17 in opposition to a new trial.

Ball argues that the Illinois Supreme Court has repeatedly held where a jury's special interrogatory answer expressly finds a plaintiff has failed to prove an essential element on their cause of action, they are not entitled to a new trial based on alleged errors unrelated to the jury's finding on the essential element.

Schwaller's attorney, John Driscoll of Brown & Crouppen in St. Louis, is asking Madison County Circuit Judge Daniel Stack to give his client a new trial. Driscoll alleges the judge did not weigh all evidence when granting a directed verdict for Merck on one count of defective design during trial.

The nearly five-week trial ended in favor of Merck on March 27 after a seven-woman, five-man jury rejected Frank Schwaller's claim that his wife's sudden heart attack at age 52 was caused by taking Vioxx.

Schwaller, of Granite City, filed suit in 2005, alleging that Vioxx caused or significantly contributed to his wife's death after she used the drug for a little over 18 months for shoulder pain.

In his motion for a new trial, Driscoll claims Stack's order of judgment for Merck on design defect was in error, and that Schwaller should be granted a new trial on design defect and negligence causes of action.

Stack made his ruling on March 28.

Driscoll argues that the Illinois Supreme Court has instructed that a directed verdict should be granted only if all of the evidence is so overwhelming that no contrary verdict could stand.

Driscoll claims Stack did not weigh all of the evidence and simply granted Merck's motion for a directed verdict.

Reached by telephone, Driscoll said that sufficient evidence was presented at trial to find in Schwaller's favor on his cause of action for design defect.

"The jury was deprived from deliberating on this evidence," Driscoll said.

But Ball disagrees.

In his motion, Ball argues that Stack's directed verdict ruling was perfectly sound.

"The evidence overwhelmingly established that Vioxx was an apparently useful and desirable product and that any risks associated with Vioxx were 'unavoidable,'" Ball wrote.

"The Court did not err in granting Merck's motion for a directed verdict."

Schwaller's case went to the jury on a single cause of action for strict liability for failure to warn. To prevail Schwaller had to prove Vioxx was the proximate cause of Mrs. Schwaller's death.

At trial, lawyers for Schwaller alleged that Vioxx was defectively designed, inadequately tested, dangerous to human health, and lacked proper warnings, which subjected users to risks of heart attacks, strokes and other illnesses.

Merck argued that Schwaller's preexisting risk factors -- a family history of heart disease, morbid obesity, diabetes, high blood pressure and sedentary lifestyle -- were responsible for her tragic, sudden cardiac death.

Ball also argued Merck quickly acted in presenting study results to the Food and Drug Administration, the scientific community, doctors in individual letters, patients and to the public in press releases.

Driscoll's co-counsel was plaintiff's attorney Mikal C. Watts of Corpus Christi, Texas. He is a candidate for U.S. Senate in Texas.