The proof required to establish liability for physical harm is outlined in Section 6 of the Restatement (Third) of Torts, a national compilation of trends in tort decisions.
2.
The Doctrine of Res Ipsa Loquitor generally applies when the occurrence of an injury is enough to allow a reasonable jury inference of both negligence and causation. Rest (2d) of Torts §328(d), on the origins of the doctrine see especially comment (a).
3.
PaganoS., “Texas Jury Awards $253 Million in Vioxx Suit”Products Liability33, no 34 (2005) 830–831.
4.
GinsburgT., “Merck Touts Unusual Line of Defense,”Philadelphia Inquirer, October 2, 2005: E1.
5.
DonaldM., “How a Small-Firm Attorney Took on Merck and Won,”Texas Lawyer, August 30, 2005: 1.
6.
DonaldM., “Lawyers in First Vioxx Suit Battle Over Causation,”Texas Lawyer, July 11, 2005: 1.
7.
Pagano, supra note 3.
8.
Donald, supra note 5.
9.
This limitation was created by Texas House Bill 4, a medical malpractice reform bill passed in 2003.
10.
Ibid.
11.
Donald, supra note 6.
12.
Ibid.
13.
As quoted in Donald, supra note 6.
14.
Texas v. Merck & Co., Inc. 385 F.Supp.2d 604 (2005).
15.
Donald, supra note 6.
16.
These specific proof requirements are described in Section 28, comment (c) of Restatement (Third) of Torts, the National Precedent compilation referred to in supra note 1.
17.
BergerM. A., “Eliminating General Causation,”Columbia Law Review97 (1997): 2117–2152, at 2122.
18.
WagnerW. E., “Choosing Ignorance in the Manufacture of Toxic Products,”Cornell Law Review82 (1997): 773–855, at 774.
19.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. at 2796.
20.
Justice Blackmun addresses this concern in the Daubert decision, suggesting that cross examination and introduction of contrary evidence by the other side will prevent erroneous scientific testimony just as they do for other kinds of testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct at 2797.
21.
BlackB.AyalaF.Saffran-BrinksC., “Science and the Law in the Wake of Daubert,”Texas Law Review72 (1994): 715–802, at 762.
22.
Where statistical analysis is being performed and a mean and standard deviation are calculated, the 95% confidence interval can be constructed as a range from the mean minus the standard deviation to the mean plus the standard deviation. This means that there is 95% confidence that a value will be in that range.
23.
The general civil liability standard is described in Section 28, comment (b) of the Restatement (Third) of Torts, the compilation described supra, note 1. Different measures are used for different types of scientific studies (such as relative risk for epidemiological studies), and different states may apply different standards.
24.
Berger, supra note 17, at 2122.
25.
Wagner, supra note 18, at 774.
26.
Berger, supra note 17, at 2117.
27.
Berger, supra note 17 and Wagner, supra note 18.
28.
As quoted in Donald, supra note 6.
29.
Ibid.
30.
Ibid.
31.
Donald, supra note 5.
32.
Ibid.
33.
Pagano, supra note 3.
34.
As quoted in BerensonA., “Jury Calls Merck Liable in Death of Man on Vioxx,”New York Times, August 20, 2005, at A1.
Estimate by analyst Chris Shibutani, CNN Money, supra note 34.
37.
As reported in Pagano, supra note 3.
38.
Ibid.
39.
According to reports from two jurors, reported in SilvermanE.MayJ., “Vioxx Jurors Cashing in as Trial Advisors”The Newark Star Ledger, October 23, 2005, at 1.
