On the Concept of Evidence That a Plaintiff Was Not Taking a Drug
Concerning the Vioxx case that just went to the jury in New Orleans, Ted Frank writes, in a post at Point of Law: "[Add] this case to this list of cases that have gone to trial where there's evidence the plaintiff wasn't even taking Vioxx."
We know this case only from what we read in Ted Frank's post and the AP story to which he links. So it's always possible Ted Frank knows more than we do. But here is what the press account says about the "evidence" on whether this plaintiff was taking Vioxx, pro and con.
Pro: "Smith, 56, had a heart attack 3 1/2 years ago and has said he didn't realize Vioxx may have been cause for concern at the time. He began taking Vioxx for knee pain, and he and his attorneys say he took it for 138 days, about 4 1/2 months."
Con: "But [defense counsel] said Smith's medical records immediately following the heart attack do not show Smith told doctors he was taking Vioxx."
In an attenuated, technical, legalistic sense, the absence of a physician's note reflecting any immediate post-heart attack mention by the patient of his medication may constitute "evidence" that he never took it. Merck's own counsel, however, do not appear to have regarded this "evidence" as sufficiently compelling to rest their case on it. They did suggest to the jury the possibility that Smith's memory might be faulty, but they also argued (as the AP puts it) that "Smith had other health factors, including high blood pressure and cholesterol, that put him at risk of a heart attack before he began taking the drug."
A wise strategic choice, in our view. This piece of "evidence" that the plaintiff "wasn't even taking Vioxx" would seem a slender reed on which to pin all hopes for a defense verdict. Still less, of course, would it support a JMOL motion, a sanctions request, or (say) an insinuation of fraud.
Update 9/27/06: The jury deliberated only briefly before coming back with a verdict for Merck.
We know this case only from what we read in Ted Frank's post and the AP story to which he links. So it's always possible Ted Frank knows more than we do. But here is what the press account says about the "evidence" on whether this plaintiff was taking Vioxx, pro and con.
Pro: "Smith, 56, had a heart attack 3 1/2 years ago and has said he didn't realize Vioxx may have been cause for concern at the time. He began taking Vioxx for knee pain, and he and his attorneys say he took it for 138 days, about 4 1/2 months."
Con: "But [defense counsel] said Smith's medical records immediately following the heart attack do not show Smith told doctors he was taking Vioxx."
In an attenuated, technical, legalistic sense, the absence of a physician's note reflecting any immediate post-heart attack mention by the patient of his medication may constitute "evidence" that he never took it. Merck's own counsel, however, do not appear to have regarded this "evidence" as sufficiently compelling to rest their case on it. They did suggest to the jury the possibility that Smith's memory might be faulty, but they also argued (as the AP puts it) that "Smith had other health factors, including high blood pressure and cholesterol, that put him at risk of a heart attack before he began taking the drug."
A wise strategic choice, in our view. This piece of "evidence" that the plaintiff "wasn't even taking Vioxx" would seem a slender reed on which to pin all hopes for a defense verdict. Still less, of course, would it support a JMOL motion, a sanctions request, or (say) an insinuation of fraud.
Update 9/27/06: The jury deliberated only briefly before coming back with a verdict for Merck.
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