Day on Torts
One of the big fights in the Vioxx trial underway in Texas is the cause of death. The Plaintiff has been granted permission to have the pathologist who did the autopsy testify – and she is giving great testimony that supports the plaintiff.
Here is the complete article:
KRISTEN HAYS
Associated Press
ANGLETON, Texas – A pathologist whose 2001 autopsy of a Texas man who is central to the nation’s first Vioxx-related civil trial can testify for jurors either in person or through a videotaped deposition, a judge ruled Thursday.
According to a transcript of the deposition obtained by The Associated Press, the pathologist, Dr. Maria Araneta, told attorneys earlier this week that Robert Ernst’s death from arrhythmia, or an irregular heartbeat, was probably brought on by a heart attack even though her autopsy report didn’t note that.
Her opinion counters Vioxx-maker Merck & Co.’s reliance on her report to bolster its position that Ernst didn’t have a heart attack.
But her opinion supports plaintiff’s lawyer Mark Lanier’s contention that Ernst suffered a heart attack that killed him too fast to leave evidence of heart damage. He also has drawn jurors’ attention to Merck’s medical manual used by doctors across the country, which says arrhythmia in some form occurs in more than 90 percent of heart attack patients.
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“Arrhythmia does not spontaneously occur. Something must trigger it,”
Araneta told attorneys in the private deposition on Tuesday.
She said Ernst, whose widow, Carol, is the plaintiff in the case, probably had a heart attack because a blood clot blocked blood flow in an artery already clogged with plaque. However, vigorous CPR conducted on Ernst – including pounding on his chest that fractured some of his ribs – probably dislodged the clot and his sudden death left no time for his heart to show damage, she said.
“Vigorous CPR could dislodge a clot. Also, the clot may be small. It doesn’t have to be a big clot to cause a myocardial infarction,” she said, using the medical term for heart attack.
Araneta also conceded that sudden cardiac death with clogged arteries can occur without a heart attack.
Merck’s lawyers have relied heavily on Araneta’s autopsy report, which attributed Ernst’s death to arrhythmia secondary to blocked arteries and doesn’t mention heart attack as a cause.
The company pulled the popular painkiller from the market last year when a study showed it doubled risk of heart attack or stroke, but Merck contends no studies link Vioxx to arrhythmia. Ernst took Vioxx to ease pain in his hands. He took the drug for eight months before he died.
However, Lanier didn’t identify Araneta by name as a witness by the pretrial deadline, so Merck’s team balked at what they called her surprise appearance.
Merck lawyer Jonathan Skidmore argued after jurors had been released for the day that Merck wasn’t ready for Araneta and her surprise appearance could prejudice the company in the jury’s eyes.
He said the New Jersey pharmaceutical giant was disappointed with state District Judge Ben Hardin’s decision to allow jurors to hear Araneta’s testimony Monday, and its legal team would consider appealing the ruling. “We’re ready to get to our witnesses, put on our case and move to a verdict,” he said.
Lanier told Hardin that Merck listed her as a witness, and the company’s lawyers have repeatedly mentioned her autopsy report throughout the trial.
“Merck injected Dr. Araneta and her report in to this trial in ways where justice cries out for her testimony,” Lanier said, noting after Hardin issued his ruling that it was “wonderful to me that it looks like the jury will hear the truth about the autopsy.”
Under questioning Thursday from Merck lawyer David Kiernan, plaintiff’s expert Dr. David Egilman, a physician and professor at Brown University, affirmed that neither Araneta’s autopsy report nor Ernst’s death certificate noted presence of a blood clot or said Ernst died of a heart attack.
But Egilman reiterated his testimony of last week that he believes Vioxx caused or contributed to Ernst’s death because most heart attacks come with arrhythmia.
Lanier’s legal team flew Araneta to Texas from Abu Dhabi, United Arab Emirates, over the weekend to testify in the first of more than 4,200 lawsuits across the country to go before a jury. Lanier said he hadn’t yet decided whether jurors would view her videotaped deposition or hear her testify in person.
At the time of Ernst’s death, Araneta was an assistant coroner for the Johnson County Medical Examiner’s office who performed autopsies at Walls Regional Hospital in Cleburne near Fort Worth.
She told Merck lawyer Joseph Piorkowski in the deposition she didn’t see evidence of a heart attack, which isn’t unusual in sudden deaths.
She also told Piorkowski she didn’t get his e-mail sent before she traveled to Texas asking whether she had spoken to Lanier and if she would be a witness.
“My only conclusion is that it must have gone into my spam box,” she said.