Merck & Co. v. Garza, No. 04-07-00234-CV, in the San Antonio Court of Appeals

Justice Marion wrote today’s opinion, joined by Justice Stone and Justice Speedlin. The judgment was a reversal and rendition of judgment for Merck, although on grounds that may not help Merck in any future cases. The Court decided that the plaintiffs had not introduced enough evidence to “exclude with reasonable certainty” the decedent’s preexisting heart condition as a cause of his blood clots. (( The opinion explains:

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.

[emphasis added] ))

A little more information appears in “Texas Court Overturns Vioxx Ruling” from the New York Times.