Plunkett v. Merck & Co.

489 F. Supp. 2d 587, 2007 U.S. Dist. LEXIS 40612
CourtDistrict Court, E.D. Louisiana
DecidedMay 30, 2007
DocketMDL No. 1657
StatusPublished
Cited by1 cases

This text of 489 F. Supp. 2d 587 (Plunkett v. Merck & Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plunkett v. Merck & Co., 489 F. Supp. 2d 587, 2007 U.S. Dist. LEXIS 40612 (E.D. La. 2007).

Opinion

ORDER & REASONS

FALLON, District Judge.

Before the Court is the Plaintiff Evelyn Irvin Plunkett’s Motion for New Trial (Rec.Doc.3674). The Court heard oral argument and took this motion under submission. Due to a misrepresentation by one of Merck’s primary witnesses that prevented Ms. Plunkett from fully and fairly presenting her case, the Plaintiffs motion for a new trial is now GRANTED and the Judgment in favor of Merck (Rec.Doe. 3483) is hereby VACATED.

I. BACKGROUND

On August 23, 2005, Ms. Plunkett filed suit in this Court against Merck & Co., Inc. (“Merck”) on behalf of herself and both the minor children and the estate of her late husband Richard (“Dickie”) Irvin.1 Mr. Irvin suffered a fatal heart attack on May 15, 2001 at the age of fifty-three, allegedly as a result of his use of Vioxx.

With the consent of the parties, Ms. Plunkett’s case was selected to be the first bellwether trial in this multidistrict litigation. On November 29, 2005, a jury trial in this matter was commenced in Houston, Texas.2 On December 12, 2005, due to the failure of the jury to reach a unanimous verdict, the Court declared the proceeding a mistrial. The re-trial of the case commenced in New Orleans on February 6, 2006. The jury returned a verdict in favor of Merck on February 18, 2006, and final judgment was entered on February 23, 2006. The Plaintiffs instant motion for a new trial followed.

In her motion, the Plaintiff relies on Rule 59 of the Federal Rules of Civil Procedure and contends that the Court abused its discretion and committed prejudicial error (1) by ruling that Dr. Thomas Baldwin, the Plaintiffs cardiologist, and Dr. Michael Graham, the Plaintiffs pathologist, could not testify that Vioxx was a contributing cause of Mr. Irvin’s death; and (2) by denying the Plaintiffs motion for a continuance of the re-trial following the Court’s Daubert decisions involving Dr. Baldwin and Dr. Graham. In a supplemental brief filed in support of her motion for a new trial, the Plaintiff also seeks relief from the final judgment in this case pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure, contending that Merck’s expert cardiologist, Dr. Barry Rayburn, misrepresented his credentials to the Court and to the jury during the trial by testifying that he is a board-certified cardiologist, when in fact he is not.

II. LAW & ANALYSIS

Different legal standards govern the Court’s analysis of the Plaintiffs arguments in support of her motion for a new trial.

The Plaintiffs initial motion was filed within ten days of the entry of judgment and seeks relief on two grounds pursuant to Rule 59, which provides that a [589]*589new trial may be granted “on all or part of the issues ... in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.” Fed. R.Civ.P. 59(a). Although Rule 59(a) does not list specific grounds for a new trial, the United States Court of Appeals for the Fifth Circuit has held that a new trial may be granted if “the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985) (citations omitted); see also McFadden v. Wal-Mart Stores, No. 04-2547, 2006 WL 3087164, at *2 (E.D.La. Oct. 27, 2006). There is no dispute that Rule 59 governs the Plaintiffs arguments (1) that the Court abused its discretion and committed prejudicial error by preventing Dr. Baldwin and Dr. Graham from testifying that Vioxx was a contributing cause of Mr. Irvin’s death, and (2) that the Court abused its discretion and committed prejudicial error by denying the Plaintiffs motion for a continuance of the re-trial following the Court’s Dau-bert decisions involving Dr. Baldwin and Dr. Graham.

However, the Plaintiffs supplemental brief was filed within one year of the entry of judgment and seeks relief on one new ground pursuant to Rule 60(b)(3), which provides that “the court may relieve a party ... from a final judgment ... for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Fed. R.Civ.P. 60(b)(3).3 “A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully and fairly presenting [her] case.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 641 (5th Cir.2005). With respect to the first factor, the Plaintiff “has the burden of proving the misconduct by clear and convincing evidence.” Id. With respect to the second factor, the Plaintiff need not show that “the information withheld be such that it can alter the outcome of the case.” Id. Indeed, Rule 60(b)(3) “is aimed at judgments which were unfairly obtained, not at those which are factually incorrect.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir.1978); see also Atchison, Toreka, & Sante Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir.1957) (“[Rule 60(b)] is remedial and should be liberally construed.”).4

A. Daubert Rulings

In the instant motion for a new trial, the Plaintiff re-urges her previous arguments concerning Dr. Thomas Baldwin and Dr. Michael Graham. The Plaintiff continues to contend that the Court abused its discretion by preventing these expert witnesses from offering opinion testimony on specific causation.

[590]*590Prior to the first trial in Houston, the Court issued an omnibus Order and Reasons resolving numerous Daubert challenges. See In re Vioxx Prods. Liab. Litig., 401 F.Supp.2d 565 (E.D.La.2005). In that decision, the Court held as follows with respect to Dr. Baldwin, the Plaintiffs cardiologist:

Merck’s challenge to Dr. Baldwin is quite similar to its challenge of Dr. Gan-dy. Like Dr. Gandy, Dr. Baldwin’s expert report is quite short and concluso-ry. It is only twelve pages long. The first seven pages concern his qualifications, background, and materials reviewed. The last five pages consist of a recitation of the facts and seven paragraphs of conclusions. Furthermore, Dr. Baldwin’s deposition testimony also reveals his lack of understanding. During repeated points in his deposition testimony, Dr. Baldwin made assertions that certain studies supported his position, but was unable to name or describe the studies he was relying on. At other points in his deposition, Dr.

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Related

In Re Vioxx Products
489 F. Supp. 2d 587 (E.D. Louisiana, 2007)

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Bluebook (online)
489 F. Supp. 2d 587, 2007 U.S. Dist. LEXIS 40612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plunkett-v-merck-co-laed-2007.