Jury misconduct found in Starr County Vioxx case READ commen

By Lynn Brezosky - Express-News

BROWNSVILLE — A state appeals court has sent a big-verdict Vioxx lawsuit back for retrial in Starr County, reversing its earlier decision to throw out the case but agreeing with drug maker Merck & Co*. that jury misconduct was at play.

Juror Jose Rios, who voted with the 10-2 majority in the $32 million verdict against Merck, admitted after trial to taking $12,700 in personal loans over six years from Felicia Garza, a widow who is the main plaintiff in the case, and to making cell phone calls to her as late as the day before jury selection.

Asked during jury selection how he knew Garza, Rios said only “from school.” Rios worked as a janitor at a Rio Grande City school where Garza taught.

“This is clearly a relationship that was more than simply ‘from school,’ ” Justice Sandee Bryan Marion wrote in the Dec. 10 opinion. “Litigants are entitled to an unbiased jury.”

Merck said it was weighing an appeal to the state Supreme Court but was pleased the misconduct finding meant plaintiffs were at best at square one.

The Garza case appeared behind the company in May, when the 4th Court of Appeals in San Antonio ruled the evidence that Vioxx caused the heart attack was insufficient.

But after a rehearing, the panel changed its mind, saying plaintiffs carried their burden in all but a design defect claim.

“We are disappointed with the courts opinion because we continue to believe that plaintiffs did not meet the legal burden for causation,” Merck said in a statement. “We are pleased that the court correctly ruled that jury misconduct did occur in this case so that a minimum, a new trial will be required.”

The case was brought by Felicia and other family of Leonel Garza, a longtime smoker with a history of heart disease who died at 71 after taking Vioxx for less than a month.

It was the sixth lawsuit involving the painkiller to go to trial and resulted in a $32 million verdict against Merck, an award that was reduced under state caps to $7.75 million.

Plaintiff lawyers touted the verdict as the first to connect even short-term use of the painkiller with heart attack death.

Evidence showed Garza’s veins were clear in the weeks before he died and that two new clots caused his heart attack.

Vioxx was pulled from the market in September 2004 after it was proven to increase the risk of heart attacks and strokes.

Merck has since been embroiled in litigation that has cost the company at least $6.38 billion. In July, the company announced a $4.85 billion payoff to settle some 50,000 still-pending lawsuits and move on.

Plaintiff attorney David Hockema said he was ready to try the case again.

“Maybe we’ll get a little more punitive (damages) this time,” he said.

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