The judge declared a mistrial in the Vioxx case this morning. The jury was unable to reach a verdict.
Federal Court Merck Jury Still Deliberating
The jury comes back Monday for a fourth day of deliberations in the first federal MDL Vioxx trial. The jury was given a dynamite or Allen charge on Saturday.
Read more here.
Federal Court Vioxx Jury is Deliberating Today (Saturday)
The Vioxx jury is working on Saturday. Read about it here.
For reaction of some lawyers to the latest news concerning the NEJM story, go here.
Tennessee Supreme Court Applies 3-Year Statute of Repose to Children
Yesterday afternoon the Tennessee Supreme Court said the the 3-year statute of repose found in the “Doctor and Hospital Relief Act of 1975” should be applied to claims made by minors.
Before yesterday, most lawyers assumed that minors had the right to wait until their 19th birthday to file suit. No more.
Our office filed an amicus brief for TTLA in support of the plaintiffs in this case. I argued the case for the plaintiffs.
Honda and Its Expert EXPOSED
Honda and its expert, Robert Gratzinger, got caught “wrongfully and intentionally alter[ing] the most significant physical evidence in [a products liability case.” The judge sanctioned them, but then sealed the order as part of a settlement of the case.
Trial Lawyers for Public Justice found to open the record to the public eye (read the motion here)and finally succeeded. Here is how it puts the describes the matter: “The court found that by intentionally destroying marks showing that Davis had been wearing a seat belt at the time of the accident – the ‘single most critical issue’ in the case – Honda had ‘attempted to rob’ the plaintiff ‘of her right to litigate on a level playing field.’ As a sanction, the court held Honda liable for Davis’s injuries and ruled the jury would only decide how much in damages Honda paid Davis.” Read the entire press release here.
Here is a copy of the now unsealed order.
Brief Writing – NOT
Read this opinion starting at Page 17 to get a court’s insight on how not to present an appeal.
An example: “Further, most of plaintiffs’ claims are patently disingenuous. Arguments regarding use of the Streamlined Rules, failure to find the arbitration was binding, the selection of the arbitrator and his subsequent disclosures or lack thereof, and the order compelling arbitration distort the law, the facts, and logic.”
Ouch.
USSC Takes ERISA Reimbursement Case
The United State Supreme Court has agreed to hear a case concerning an ERISA plan’s legal right to sue a plan participant for reimbursement. As John Wood explains, “This important issue typically arises when an ERISA health plan pays medical bills for an injured participant. If the participant recovers from a third-party tortfeasor, the plan then seeks to recover its reimbursement interest from the participant.”
Read more about the issue and the case here at John’s erisaontheweb blog.
Did Merck Hide Data? UPDATED X 2
The New England Journal of Medicine, hardly a tool of the plaintiff’s bar, has concerns that Merck not only played dodgeball but actually hid the ball. AP puts it this way: “Vioxx maker Merck & Co. concealed heart attacks suffered by three patients during a clinical study of the now-withdrawn painkiller in a report on the study published in the New England Journal of Medicine in 2000, the journal wrote in an editorial released Thursday.”
The editorial said this: “Taken together, these inaccuracies and deletions call into question the integrity of the data on adverse cardiovascular events in th[e earlier] article.” And this: “Excluding the three heart attacks “made certain calculations and conclusions in the article incorrect,” the doctors wrote, adding that they have asked the report’s authors to submit a correction to the journal.
A federal court jury is deliberating the third Vioxx case as this post is being written.
Vioxx Trial – First MDL Trial
Here is the latest news on the first federal MDL trial currently underway in Houston.
The judge wants this case over quickly; the plaintiffs put on their case in less than five days and the defense has already called several witnesses. Here is a summary of a key witness for the plaintiff who was not called in the two prior trials.
Exculpatory Language Struck Down
The Connecticut Supreme Court has ruled that an exculpatory clause in a form signed at a snowboarding and snowtubing facility did not bar the plaintiff’s claim.
The Court rejected Plaintiff’s argument that the agreement was ambigious. The Court said “[w]e conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence.”
However, the Court said that the exculpatory clause was void as against public policy. The Court acknowledged that ” most states
uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct.” However, the Court held that several factors, including the fact that the plaintiff was relying on the defendants to make the premises safe and the fact that the contract was a “take it or leave it” proposition, to declare the clause void.