From Casetext: Smarter Legal Research

Merck Co. v. Garza

Court of Appeals of Texas, Fourth District, San Antonio
May 14, 2008
No. 04-07-00234-CV (Tex. App. May. 14, 2008)

Opinion

No. 04-07-00234-CV

Delivered and Filed: May 14, 2008.

Appealed from the 229th Judicial District Court, Starr County, Texas, Trial Court No. DC-03-84, Honorable Alex Gabert, Judge Presiding.

Reversed and Rendered.

Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.


OPINION


At the time of his death on April 21, 2001, Leonel Garza was seventy-one years old and had a history of heart problems. On March 27, 2001, Mr. Garza visited his cardiologist, Dr. Michael Evans, because he had been experiencing "[i]ntermittent numbness, left arm pain and weakness that had started the day before and was occurring on and off over a 24-hour period." During this visit, Dr. Evans gave Mr. Garza a one-week sample supply of Vioxx to ease the pain in his arm. This was the first time Mr. Garza had taken Vioxx. Following his appointment with Dr. Evans, Mr. Garza underwent several tests, including an ultrasound of his neck to check blood circulation in the brain and a cardiolite stress test to check blood flow in the heart. On April 4, 2001, Mr. Garza returned to the doctor for the test results, this time seeing Dr. Evans' partner, Dr. Juan Posada. Because Mr. Garza's stress test showed a "mild abnormality," Dr. Posada recommended a cardiac catheterization, which Mr. Garza declined pending his next appointment with Dr. Evans. Although Dr. Posada does not recall giving Mr. Garza more Vioxx, Mr. Garza's wife testified that he did. On April 21, 2001, Mr. Garza died of a heart attack. Mrs. Garza and the Garzas' children (collectively, "the plaintiffs") sued Merck Co., Inc. on design defect and marketing defect strict liability claims based upon allegations that Merck's prescription drug Vioxx caused Mr. Garza's death. This is an appeal from a jury verdict in favor of the plaintiffs.

CAUSATION

Under both their design defect and marketing defect claims, plaintiffs were required to prove both general and specific causation. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). General causation asks whether a substance is capable of causing a particular injury in the general population; specific causation asks whether that substance caused a particular individual's injury. Id. To establish specific causation, plaintiffs may rely on studies showing an increased risk of their particular injury resulting from exposure to the substance at issue to raise a fact question on causation. Id. at 714-15. However, "if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty." Id. (citation omitted).

Merck argues plaintiffs' evidence on specific causation is insufficient because plaintiffs did not rule out, with reasonable certainty, the most plausible cause of Mr. Garza's heart attack, which was the progression of his preexisting cardiovascular disease. At trial, plaintiffs' expert, Dr. Simonini, conceded Mr. Garza had cardiac problems and was a "high-risk patient." Mr. Garza was seventy-one years old and overweight; he had already suffered one heart attack; he had had quadruple bypass surgery sixteen years before his death; he had high blood pressure and high cholesterol; and he had some diseased arteries. He had been smoking for almost thirty years and continued to smoke until his death. Dr. Simonini admitted that continuing to smoke puts one at risk, even someone like Mr. Garza who was taking blood pressure and cholesterol medication, and smoking may reduce the benefits of any such medication. Dr. Simonini also conceded that the type of heart disease Mr. Garza had put him at risk for having another heart attack. Mr. Garza's autopsy revealed the "aorta shows stress of severe atherosclerotic disease," "extensive scarring and old fibrosis along the posterior lateral and anterior lateral segments of the heart and also along the ventricular septum," "severe atherosclerotic diseases of all coronaries," and "the bypass graft shows severe disease."

Despite Mr. Garza's history of heart problems, plaintiffs contend they excluded, with reasonable certainty, the possibility that his fatal heart attack was caused by his preexisting heart condition by establishing the following: Mr. Garza's two physical examinations, between March 27 and April 4 of 2001, showed him to have "stable cardiac status" before he began taking Vioxx; his death was caused by the two fresh occlusions (or clots) that occurred after he began taking Vioxx; Dr. Simonini's testimony that the simultaneous formation of two clots is very rare without the introduction of a causative agent like Vioxx; and the formation of clots is the type of problem caused by Vioxx.

As support for their contention that Mr. Garza's heart condition was stable, plaintiffs point to Dr. Posada's notes following his April 4, 2001 examination of Mr. Garza in which he stated "stable cardiac status. . . ." The result of Mr. Garza's stress test revealed the tip of Mr. Garza's heart did not get enough blood flow. In Dr. Evans' opinion this result indicated an artery supplying blood to that area of the heart was blocked. However, Dr. Simonini noted this was "a very small area of the heart, and it was stable from [a previous test]." Dr. Simonini explained that the stress test revealed Mr. Garza's heart had only a "mild abnormality." Dr. Simonini said that sixty percent of Mr. Garza's heart emptied every time the heart squeezed and this fraction was within normal range and was a "good predictor of staying alive longer."

Plaintiffs also relied on Mr. Garza's autopsy, which revealed that Mr. Garza's heart attack was caused by the simultaneous formation of two clots in two of Mr. Garza's vein graphs from his bypass surgery. Plaintiffs contrast the autopsy results with the results of the stress test that showed blood flow to these same areas was good and there was no evidence of blockage. According to Dr. Simonini, the simultaneous formation of the two clots in two different arteries was a "rare" occurrence, and it would be difficult to explain why Mr. Garza suffered a heart attack within a few weeks of his stress test absent the Vioxx. However, if his taking Vioxx was added to the scenario, Dr. Simonini opined "then you have a causative effect" because "[y]ou have something that has been shown to cause clots, and now you could explain this — this simultaneous event of two vessels being blocked . . . at the same time." Dr. Simonini concluded Vioxx caused Mr. Garza's heart attack.

Although plaintiffs were not required to establish specific causation in terms of medical certainty, nor to conclusively exclude every other reasonable hypothesis, because Mr. Garza's preexisting cardiovascular disease was another plausible cause of his death, the plaintiffs were required to offer evidence excluding that cause with reasonable certainty. See Merrell Dow, 953 S.W.2d at 720. We do not believe plaintiffs met their burden. Dr. Simonini's causation opinion is based on the premise that, despite a recent scan that was only mildly abnormal, two clots formed simultaneously in two different arteries sometime after Mr. Garza began taking the Vioxx and such an occurrence was "rare." However, no scientific evidence was offered to support Dr. Simonini's opinion that the two clots were "rare" for someone with Mr. Garza's risk factors. Also, Dr. Simonini provided no scientific connection between exposure to Vioxx for less than twenty-five days and the simultaneous formation of two clots. Even viewing all the evidence in the light most favorable to plaintiffs, we conclude the evidence is legally insufficient to support a finding that plaintiffs negated, with reasonable certainty, Mr. Garza's preexisting heart condition as a plausible cause of his death. Therefore, the judgment should be reversed and a take-nothing judgment rendered in favor of Merck.

Because this issue is dispositive, we need not address Merck's remaining issues on appeal or the issues raised in plaintiffs' cross-appeal. See Tex. R. App. P. 47.1.


Summaries of

Merck Co. v. Garza

Court of Appeals of Texas, Fourth District, San Antonio
May 14, 2008
No. 04-07-00234-CV (Tex. App. May. 14, 2008)
Case details for

Merck Co. v. Garza

Case Details

Full title:MERCK CO., INC.; Appellant v. Felicia GARZA, Individually and on Behalf of…

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 14, 2008

Citations

No. 04-07-00234-CV (Tex. App. May. 14, 2008)