Northwest Business Litigation

Vioxx maker answers with defense verdict: Score--Merck 10, Plaintiffs 5

Just weeks after Merck was hit with a multi-million dollar verdict in another Vioxx case in New Jersey, a jury this week in the otherwise plaintiff-friendly Madison County, Illinois court handed the plaintiff a defense verdict after deliberating less than 6 hours.  Plaintiff Frank Schwaller sued the maker of the Cox-2 Inhibitor for the death of his wife.  After taking Vioxx for about a year and a half, in 2003, Patricia Schwaller died of a heart attack.  The jury may have been persuaded that Ms. Schwaller's heart attack was not caused by her prescription medication as she also suffered from high cholesterol, high blood pressure and obesity.  Merck continues to fight the Vioxx cases one-by-one.  As jury trials go in these kinds of high profile pharmaceutical cases, the company is doing pretty well.  The score now?  Merck 10, Plaintiffs 5.

Vioxx plaintiff hits homerun; Score: Merck 9, Plaintiffs 5

In a setback for Merck, the maker of Vioxx, a New Jersey jury today awarded plaintiff $20 million in compensatory and $27 million in punitive damages to a 61-year-old mail carrier who suffered a heart attack allegedly caused by his prescription Vioxx.  The pharmaceutical company has won nine of the fourteen Vioxx cases it has tried.  For more on the case, see here.

Supreme Court answers the $79 million questions: No and no

Two cases making legal news have a few things in common:  they were both tried in Portland, the juries in each case punished the defendants by assessing $79 million in damages (give or take half a million), and today both cases were overturned by the U.S. Supreme Court.

In Philip Morris v. Williams, the products liability plaintiff obtained a $79.5 million punitive damages verdict against the cigarette manufacturer.  The Supreme Court voted 5-4 that the Due Process clause of the Constitution prohibits punitive damages awards that punish defendant for harm inflicted on any party other than plaintiff.  In a bit of constitutional hair-splitting, the Court stated that a plaintiff can offer evidence of harm to non-parties to show that the wrongful conduct was reprehensible, but the jury can't use that evidence to punish defendant for the harm caused to others.  How to ensure that juries don't cross the line?  It's up to the states to figure that out, according to the court, beginning with the Oregon Supreme Court as it will again take up the Williams case.  See the Oregon Business Litigation Blog's earlier coverage of the case here and here.

In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., the Supreme Court threw out a novel antitrust theory that had resulted in a verdict of $ 26 million, trebled by law to $79 million.  Plaintiffs claimed that Weyerhaeuser had engaged in an unlawful monopsony -- or buyer-side monopoly -- by bidding up the price of alder logs (as input for its mills) to levels higher than other mills could afford to pay, thereby putting those mills out of business.  This theory is called predatory bidding.  The unanimous court held that to prove predatory bidding, plaintiff must show that (1) bidding up the price of the input caused the price of the resulting output to exceed the revenues generated by the sale of that output, and (2) defendant has a dangerous probability of recouping the resulting losses  by exercising its monopsony power once competitors are run out of business. 

At trial, Judge Owen Panner did not require plaintiff to make such a stringent showing, instructing the jury that plaintiff was required to show only that Weyerhaeuser had bid the cost of logs above a "fair price."  The Supreme Court reversed the verdict resulting from that instruction.  See the Oregon Business Litigation Blog's earlier coverage of the case here, here,  and here.

Find other law blog coverage of today's rulings here and here.

Oregon Supreme Court holds asbestos claim not barred by statute of limitations

Oregon Plaintiffs Lawrence and Patricia Keller may proceed to trial in their asbestos injury cases thanks to the Oregon Supreme Court's recent interpretation of the "discovery rule" in the Oregon statute of limitations.

The Kellers brought suit against various defendants alleging that Lawrence Keller was injured from exposure to asbestos.  The defendants moved to dismiss the suit, arguing that the statute of limitations had run on the claims.  Oregon's asbestos statute of limitations, ORS 30.907(1), provides that:  "A product liability civil action for damages resulting from asbestos-related disease shall be commenced not later that two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care should have discovered, the disease and the cause thereof." 

Lawrence Keller had worked as a mechanic in a muffler shop where he allegedly was exposed to asbestos.  He later developed respiratory ailments and, from the mid-1980s to the mid-1990s, saw various doctors who told him that his exposure to asbestos was a possible cause of his problems.  More than two years before he filed his civil suit in 2000, he filed both workers compensation and social security disability claims in which he alleged that he suffered from his prior exposure to asbestos.

Nonetheless, in a unanimous opinion, the Oregon Supreme Court last week held that a reasonable juror could find that Mr. Keller did not discover his asbestos-related condition until a doctor diagnosed it.  That diagnosis came, for the first time, within the two-year limitations period.  The Court further held that knowledge of his condition and its cause should not be imputed to him while he engaged in a reasonable inquiry and was told by his doctors that the cause of his condition was uncertain.  You can read the opinion here:  Opinion.

Class Action Status Denied in Vioxx Cases

Federal Judge Eldon Fallon, who oversees the thousands of federal Vioxx painkiller cases facing drug maker Merck & Co., denied the plaintiffs' request to certify the personal injury and wrongful death cases as class actions.  Plaintiffs allege that Vioxx increases the risk of heart attacks and other ailments, and Merck pulled Vioxx from the market in 2004.  Judge Fallon determined that the individual differences among the many plaintiffs and their specific medical histories made any class adjudication unmanageable.  The ruling deprives the plaintiffs of leverage to negotiate a comprehensive settlement, as the cases must now proceed on an individual, and more costly, basis.  Merck has vowed not to settle, but to try all cases individually.  Judge Fallon's order can be found here:  Order

Appeals Court Stays Tobacco Sanctions

Without issuing a written opinion, the United States Circuit Court of Appeals for the District of Columbia, on October 31, 2006, stayed a trial court ruling which would have required the big tobacco companies to refrain from using "light," "low tar," and similar phrases in their advertising of so called "light" cigarettes.  In addition to the advertising sanctions, trial court Judge Gladys Kessler's underlying order would have required the tobacco companies to make costly corrective public statements about the harmful effects of smoking cigarettes.  In the absence of the stay, the companies would have had to comply with the prohibition on advertising phrases and taken the other corrective measures by January 1.  The stay by the appeals court allows the tobacco companies to avoid spending millions of dollars complying with the order while they try to convince the appeals court to reverse Judge Kessler's ruling altogether.

Supreme Court may send punitive damage case back to Oregon

At yesterday's U.S. Supreme Court argument in the Oregon case Philip Morris USA v. Williams, the justices signalled that they may return the case to the Oregon Supreme Court for clarification.  Doing so would avoid for now further explication by the Court of the Due Process limits on punitive damages, and in particular the extent to which a jury can consider harm to non-parties in setting punitive damages.  Link: Law.com - Justices May Return Punitive Damages Case to Oregon High Court.

U.S. Supreme Court to scrutinize Oregon punitive damage award

Next Tuesday, October 31, the U.S. Supreme Court will hear oral argument in the latest of a series of  cases concerning the proper scope of punitive damages.  Philip Morris USA v. Williams was tried in Multnomah County Superior Court in 2002.  Plaintiff Mayola Williams claimed that the tobacco company misled her deceased husband about the danger of smoking, and received an awarded of $79.5 million in punitive damages.  Beginning with BMW v. Gore in 1996, the Supreme Court has issued a series of cases imposing Due Process clause limits on excessive punitive damages.  The Williams case has a particular focus on the extent to which punitive damages can be awarded as punishment for harm to persons other than the parties to the action.  The Court granted certiorari to address these questions:

1.  Whether, in reviewing a jury's award of punitive damages, an appellate court's conclusion that a defendant's conduct was highly reprehensible and analogous to a crime can "override" the constitutional requirement that punitive damages be reasonably related to the plaintiff's harm.
2.  Whether due process permits a jury to punish a defendant for the effects of its conduct on non-parties.

The briefs filed in the Supreme Court are available here.

Class Action Smokers Denied "Medical Monitoring" and Treatment Costs

The Oregon Court of Appeals dismissed plaintiff's negligence claim in this Oregon state court putative class action on the basis that plaintiff alleged no present injury, but merely the costs of on-going "medical monitoring" and cessation treatment.  The case is:  Lowe v. Philip Morris USA, Inc., et al.

In this case of first impression in Oregon, the plaintiff smoked for several years, and her attempts to quit smoking failed.  Plaintiff did not allege lung cancer or any other physical injury from smoking cigarettes.  The Court noted that plaintiff's complaint rested on allegations of the need for monitoring and treatment "to redress the mere possibility of future harm."  The complaint "fail[ed] to include an allegation of actual, present harm of any sort, much less the physical harm that ordinarily is required to state a claim for negligence."  The only two exceptions to the physical harm requirement under Oregon law--economic loss and infliction of emotional distress--did not apply because, in the case of "economic loss," there was no "heightened duty of care" owed by the defendants, and, in the case of emotional distress, there likewise was no heightened duty, no "intentional conduct," and no physical impact.  Accordingly, plaintiff was unable to state an ordinary negligence claim.  On the other hand, the court left for another day, "whether a negligence claim predicated on different allegations as to the risk of future harm and the certainty of the need for treatment is cognizable under Oregon law," emphasizing that plaintiff alleged only a mere possibility of future harm.

Merck Wins Vioxx Case

The score is now Merck 5, plaintiffs 3 in the ongoing battle over the safety of Merck's drug, Vioxx.  Vioxx is one of many prescription "NSAID" (non-steroidal anti-inflammatory) medications, used to treat certain kinds of pain including arthritis. In the first of the California cases, the jury rendered a verdict for the defense, finding that the 71-year-old plaintiff did not prove that his use of Vioxx caused his heart problems.  With thousands of similar cases pending, Merck has vowed to continue to fight them in court one at a time.  For more coverage, see the AP article at:  http://www.law.com/jsp/article.jsp?id=1154509541613