Driscoll seeking new Vioxx trial on all counts for client Schwaller

Madison County Circuit Judge Daniel J. Stack continued a hearing that was going to decide whether Madison County's first Vioxx plaintiff was to receive a new trial.

Stack continued the hearing after plaintiff attorney John Driscoll of Brown & Crouppen filed a supplemental motion for new trial minutes before the hearing.

Driscoll originally asked Stack to give his client Frank Schwaller 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 Schwaller's claim that his wife's sudden heart attack at age 52 was caused by taking Vioxx.

Now, Driscoll indicates he is seeking a new trial on all counts of the case including negligence, strict product liability, failure to warn and defective design.

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 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.

But Merck's lawyer, Dan Ball of Bryan Cave, disagrees and argues that the plaintiff's case could not have prevailed on a design defect claim even if it was submitted to the jury.

Ball 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 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 his wife'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 sudden cardiac death.

But Driscoll's new motion claims that one month after his first motion was filed, The New England Journal of Medicine published an article with results of a study performed by the University of Oxford that compared rates of Vioxx users who had cardiovascular thrombotic events and death during the study, and two years after.

According to Driscoll, the study showed Vioxx was associated with an increased risk of adverse cardiovascular events among patients.

"Said differently, the Oxford study concluded that the risk of cardiovascular injury or death from Vioxx use increased from the start, rather than an 18 month delay as Merck's witnesses, graphs and charts portrayed to the jury," Driscoll wrote.

Driscoll claims the study concluded that the risk of cardiovascular injury from taking Vioxx begins almost immediately and gets progressively greater over time.

"The Oxford study, and the conclusions arrived at therefrom, are significant and rebut the defense mounted by Merck at trial," Driscoll wrote.

Stack will hear both of Driscoll's motions at the same time. He has given Merck until Sept. 28 to respond to Driscoll's new motion.

Driscoll must then file his response to Merck by Oct. 9, and then Stack will set a hearing on both.