Appeals court throws out $32 million Starr County Vioxx verdict

RIO GRANDE CITY -- A state appeals court overturned a Starr County jury's landmark verdict Wednesday against the makers of the painkiller Vioxx.

In a unanimous decision, the San Antonio-based Fourth Court of Appeals ruled there was insufficient proof linking 71-year-old Leonel Garza Sr.'s short-term use of the drug to the heart attack that killed him in 2001.

The panel's judgment marks the first time an appellate court has overturned one of the five Vioxx cases decided against New Jersey-based Merck & Co. Inc. since it pulled the drug from pharmacy shelves in 2004, a company spokesman said.

"Today's decision reaffirms that there is simply no reliable scientific evidence that Vioxx caused (Garza's) heart attack," said Ted Mayer, outside counsel for Merck.

Jurors awarded Garza's widow and children $32 million in April 2006 after they were convinced that the drug had caused two blood clots to form less than a month after he started taking it. That award was later reduced to $7 million under a Texas law limiting damages.

In appealing the case, attorneys for Merck argued the most plausible cause for Garza's coronary was a long history of previous risk factors.

He had a diagnosed heart condition before he started taking Vioxx, had already suffered one heart attack, had undergone quadruple bypass surgery and had high blood pressure and cholesterol. He also smoked until the day he died, they said.

But throughout the original trial in Judge Alex Gabert's 229th state District Court, Garza's doctors said their patient had gained control of his condition and that tests indicated he had less than a 2 percent risk of a heart attack within a year, said David Hockema, a McAllen lawyer who represents the family.

Hockema took issue with the appeals court decision Wednesday, saying it would be scientifically impossible to prove that Vioxx was the only cause of Garza's death. He insists, however, that it was a contributing factor.

"If you follow (the appeals court's) reasoning, Merck should never have paid any of the other 60,000 people that died," he said.

Garza's widow, Felicia, said she had not heard that her case was overturned when reached by phone Wednesday. She declined to comment on the decision.

Attempts to contact other family members were unsuccessful.

TAINTED LEGACY?

The Garzas' case, the fourth to be tried in the wake of the Vioxx recall, drew national attention to Starr County's small courthouse and the outrage of critics after the jury issued its verdict.

The case remains a touchstone for lawyers and corporations leery of the Rio Grande Valley's plaintiff-friendly legal climate and who say the jury pool was tainted from the very beginning.

Nearly all potential jurors raised their hands when asked whether they knew the Garza family during the jury selection process. Merck moved to have the case retried last year after learning that Felicia Garza had loaned one of the jurors almost $13,000.

"It brought all that negative attention to the Valley's legal system," said Bill Summers, president of Rio Grande Valley Citizens Against Lawsuit Abuse and a former Vioxx user himself. "The (appeals court) made the right decision."

CASES OUTSTANDING

Merck pulled Vioxx from the market in September 2004, after research indicated the painkiller doubled the risk of heart attacks and strokes. More than 60,000 product liability lawsuits flooded courts across the nation in the wake of that decision.

Of those to go to trial, the drug maker has won 12 and lost five - counting the Garza case.

Company attorneys have appealed the decisions against Merck, including a 2005 judgment in which a jury in Angleton, near Houston, awarded $253 million to the family of a 59-year-old marathon runner who died while taking the drug. That case and the three other outstanding appeals remain undecided.

Late last year, Merck announced a $4.85 billion settlement expected to resolve most of the outstanding cases. The Garzas were specifically excluded from that agreement.

They will not receive any money unless they successfully convince the appeals court to rehear their case or convince a higher court to reinstate the jury's verdict.

"We are still reviewing our options at this point," Hockema said.
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Jeremy Roebuck covers courts and general assignments for The Monitor. You can reach him at (956) 683-4437.