John Driscoll

Circuit Judge Daniel Stack

Attorney John Driscoll is asking Madison County Circuit Judge Daniel Stack to give his client a new trial, alleging the judge did not weigh all evidence when granting a directed verdict for Merck on one count of defective design during the county's first Vioxx trial.

The 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 the death of Patricia Schwaller after she used the arthritis pain-reliever 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, of Brown & Crouppen in St. Louis, 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.

"The circuit court's entry of the foregoing directed verdict was error and (Schwaller) should be granted a new trial on his design defect and negligence causes of action," Driscoll wrote.

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.

Driscoll is asking Stack to rule that the directed verdict was in error and either order a new trial or enter a judgment in Schwaller's favor.

During the trial, Schwaller's lawyers asked the jury for "tens of millions of dollars."

In response to Driscoll's motion, Tilden Katz, a Merck spokesman said Merck will be filing a formal response within the next 14 days.

Katz said there is no basis in law for Driscoll's argument and said he is confident Stack will rule in Merck's favor.

"In addition, the jury's special interrogatory indicated that Vioxx was not the cause of Schwaller's death, so the issue of design defect is moot," Katz added.

Stack has yet to set a hearing on the motion.

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 unfortunate, sudden cardiac death.

Merck's attorney, Dan Ball of Bryan Cave in St. Louis, 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 recently announced he was forming an exploratory committee on a potential run for U.S. Senate in Texas.

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