Driscoll pushes Stack for new Schwaller Vioxx trial

By Steve Gonzalez | Nov 1, 2007

John Driscoll

Circuit Judge Dan Stack

Madison County Circuit Judge Daniel Stack has taken under advisement a motion by Vioxx plaintiff's attorney John Driscoll to get another trial that went in favor of defendant drug maker Merck back in March.

Driscoll, of Brown & Crouppen in St. Louis, argued Oct. 31 that his client Frank Schwaller of Granite City deserved a new trial because new evidence shows Vioxx is dangerous after just taking the pill one time.

Driscoll cited an Oxford study that was published in the New England Journal of Medicine on July 26.

According to Driscoll, the study concluded that that the risk of cardiovascular injury or death from Vioxx increased from the start, rather than 18 months as Merck's charts showed a Madison County jury.

Driscoll also argued that Stack did not weigh all evidence when granting a directed verdict for Merck on one count of defective design during trial.

Madison County's first (and so far only) Vioxx trial ended after five weeks in favor of Merck on March 27. 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.

Schwaller filed suit in 2005 alleging that Vioxx caused or significantly contributed to Patricia Schwaller'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 that ruling on March 28.

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

Merck's attorney, Dan Ball of Bryan Cave in St. Louis, argued that Schwaller 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.

The jury filled out a special interrogatory and found that Mrs. Schwaller's use of Vioxx did not proximately cause her sudden cardiac death.

Ball said that the Illinois Supreme Court has repeatedly held that 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.

Ball also argued that Stack's directed verdict ruling was perfectly sound.

Stack took the matter under advisement so he could read all the documents the parties filed.

After that hearing, Stack took up other pending Vioxx claims.

He denied Merck's motion for summary judgment on a claim filed by St. Louis plaintiff attorney Jeffrey Lowe.

Merck argued that the statute of limitations tolled on Lowe's client because his heart attack occurred in 2000.

Lowe argued that the statute did not begin to run until Merck pulled Vioxx from the market in 2004, Stack agreed.

But it was not a total loss for Merck. The pharmaceutical successfully argued that two common law fraud counts should be dismissed, while losing the argument that the count regarding violations of the Illinois Consumer Fraud Act.

Merck also successfully convinced Stack to transfer four cases based on forum non conveniens.

Stack transferred the cases of Robert Jackson and George Hughes to Champaign County and sent Sandra Zola's and Thomas Vogel's complaints to Cook County.

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