Vioxx jury finds Merck liable (253.4 MILLION dollars)

Houston Chronicle ^ | August 19, 2005

[Dog Gone]

ANGLETON -- The Brazoria County jury in the nation's first Vioxx-related civil trial has found pharmaceutical giant Merck & Co. liable for the death of a man who took the painkiller.

Jurors awarded Robert Ernst's widow, Carol, $253.4 million in damages, which is a combination of his lost pay as a Wal-Mart produce manager, mental anguish, loss of companionship and punitive damages.

 Carol Ernst began to cry when the verdict was read while her attorneys jumped up and shouted, "Amen!"

The plaintiffs team huddled and hugged and repeated, "Amen, amen," while plaintiff's lawyer Ben Morelli told Ernst, "It's your jury."

"Anyone who said they are too small town or won't understand, they are crazy," said her lawyer, Mark Lanier. "They know truth and they know justice."

"Merck should come to the table and accept responsibility," Lanier said.

 The jury broke down the damage award as $450,000 in economic damages - Robert Ernst's lost pay as a Wal-Mart produce manager; $24 million for mental anguish and loss of companionship, and $229 million in punitive damages.

But the punitive damage amount is likely to be reduced as state law caps punitive damages at twice the amount of economic damages - lost pay - and up to $750,000 on top of non-economic damages, which are comprised of mental anguish and loss of companionship.

The case drew national attention from pharmaceutical companies, lawyers, consumers, stock analysts and arbitragers as a signal of what lies ahead for Merck, which has vowed to fight the more than 4,200 state and federal Vioxx-related lawsuits pending across the country. Merck said it plans to appeal.

A seven-man, five-woman jury from a semi-rural county south of Houston deliberated for 10 1/2 hours over two days before blaming the drug for killing Ernst in his sleep in 2001. Jurors rejected Merck's argument that Ernst died of clogged arteries rather than a Vioxx-induced heart attack that led to his fatal arrhythmia.

Merck response

Jonathan Skidmore, a member of Merck's defense team, said today, "We believe that the plantiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death."

"There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst's death, along with coronary atherosclerosis."

Merck also contends the case did not call for punitive damages.

"Merck acted responsibly - from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine when it did," Skidmore said.

"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," said Kenneth C. Frazier, senior vice president and general counsel of Merck, in a written statement. "Our appeal is about fundamental rights to a fair trial."

The company will base its appeal on:

— Allowing opening testimony to be given to the jury by unqualified experts.

— Allowing opinion testimony that was not based on a reliable, scientific basis as required by Texas law.

— Allowing evidence with no relevance to the issues of the case, which unfairly prejudiced the jury.

— Allowing undisclosed surprise witness and expert testimony contrary to Texas law.

 

RESOURCES

AP

THE TRIAL
• What it's about: In the first of thousands of Vioxx cases to go to court, Carol Ernst blames pharmaceutical giant Merck & Co. for the 2001 death of her husband, Robert Ernst. 7/5/05.
• The legal teams: A matchup of legal powerhouses. 7/11/05.

---

CASES PENDING
• Texas sues: Merck accused of downplaying dangers of Vioxx. 6/30/05.

Other lawsuits involving Vioxx pending against Merck:
• 4,275 suits in federal and state courts.
• 119 class action cases pending, but none certified.

A little more than two hours into their second day of deliberations, lawyers said jurors asked for a replay of testimony from Dr. Maria Araneta, who attributed the 2001 death of Robert Ernst to an irregular heartbeat secondary to clogged arteries. The panel had yet to specify which part it wanted to hear, and any replaying of testimony must take place in open court.

Vioxx-maker Merck & Co. used that autopsy to support the company's contention that the painkiller had nothing to do with Robert Ernst's death.

Merck pulled the $2.5 billion seller from the market last year after a study showed it could double risk of heart attack or stroke if taken for 18 months or longer, but the company says no studies link Vioxx to arrhythmia, or irregular heartbeat.

Araneta, who now works at a hospital in the United Arab Emirates, testified that a blood clot probably caused a heart attack that triggered Ernst's arrhythmia. She said vigorous CPR likely dislodged the clot so she couldn't find it during the autopsy, and his death was too sudden to leave evidence of the heart attack.

Merck lost appeals to block jurors from hearing Araneta's testimony during the trial, which was presented via videotaped deposition.

Araneta didn't blame Vioxx for causing a heart attack, noting she knew little of the drug in 2001. Other plaintiff's experts blamed the drug. Experts who testified for Merck said Araneta's written conclusions in the autopsy were valid, but her opinions expressed more than four years later were not.

The trial that began July 14 was the first of more than 4,200 lawsuits in the nation to go before a jury. The case has drawn national attention as the first test of Merck's legal fate, and analysts have speculated Merck's liability could reach $18 billion.

Merck launched Vioxx in 1999 with great fanfare to relieve arthritis and acute pain while cutting risk of stomach bleeding by inhibiting a blood-thinning enzyme. Some 20 million people took Vioxx when it was available to consumers.

Lanier asked jurors to award her at least $40 million in damages.

He suggested during closing arguments that her mental anguish and loss of companionship damages could reach $229 million or more. Lanier said Merck reaped that amount from Vioxx sales in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The U.S. Food and Drug Administration suggested the changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller, naproxen.

In Texas, punitive damages are capped at twice the amount of economic damages - lost pay - and up to $750,000 on top of non-economic damages, which are comprised of mental anguish and loss of companionship. Non-economic damages have no limit in Texas except in medical malpractice cases, which doesn't apply to the Ernst case.

Shares of Merck & Co. fell $1.01, or 3.3 percent, to $29.40 in afternoon trading on the New York Stock Exchange after the verdict

[Dog Gone]

Pat Sullivan / Associated Press

Plaintiff Carol Ernst, center, and her attorneys Randy Moore and Ben Morelli react to the jury's verdict in her favor in her case against Vioxx maker Merck & Co. today in Angleton.

[kellynch]

I own several hundred shares of Merck in my IRA. The only positives I get out of this from this perspective are that a) the lower stock price means that, when dividends are paid, I'll be able to buy more shares of stock and b) I don't plan to retire for about 25 years, so the company will either have had time to recover from this, or they'll get taken over and I'll have that company's shares in my portfolio. And no, I won't sell.

[Burlem]

I think the award is disgusting. The juries of this type can collapse the big companies and in the case of Merck cripple them to where they may hold back with trying to find new drugs. Lets not forget the FDA approved Vioxx.
The lawyers will probably get most. I understand there are 4,000 more cases waiting.

[A Citizen Reporter]

"Carol Ernst began to cry when the verdict was read while her attorneys jumped up and shouted, "Amen!""

And began counting their windfall.....

[tomahawk]

The plaintiffs lawywers will put the pharmas out of business and millions will die as a result.

Our legal system is so broken, it's taking this country right down the drain.

[RightWhale]

Nobody is worth 1/4 billion. But, just wait until somebody finds a way to sue oil companies.

[Harmless Teddy Bear]

May the fleas of a thousand camels attack their armpits and their arms be too short to scratch.

I hate lawyers.

[Canedawg]

Well, they certainly picked the right venue for this ridiculous verdict- Houston juries are right at the top for giving out big bucks in their attempt to redistribute the wealth.

The Merck defense lawyers wont be sleeping well tonite.

[InsureAmerica]

Lawyers - $2,533,999
Plaintif - $1

All the rest of us - increased medical costs and another barrier to research for the drugs that will help us live longer and healthier lives..

This is great.

[plangent]

So, Merck's insurer will cover the cost.

The insurer will raise premiums.

Merck will factor the increase in its cost of business model.

Merck drugs will become more expensive.

The full payment will come out of the consumers' pockets.

[Canedawg]

"But the punitive damage amount is likely to be reduced as state law caps punitive damages at twice the amount of economic damages - lost pay - and up to $750,000 on top of non-economic damages, which are comprised of mental anguish and loss of companionship."

It's really misleading to write the article the way it is written, knowing how much it will be reduced. I also dont understand why the court allows the jury to award such an outrageous amount when the Texas law clearly states what the limits are.

[MindBender26]

Such BS.

A bunch of her neighboors sat down and decided how much free money to give their friend Carol.

So her lawyers get rich, and one day Merck says, screw it, those consumers don't deserve any better drugs.

Shakespear was right.

[InsureAmerica]

would be great to know how many of these lawyers have taken vioxx

[Eagles Talon IV]

I predict Merck appeals this into the next decade and the plaintiff will wind up settling for a fraction of the original award.

[mlc9852]

So you think it's better to leave dangerous drugs on the market and no one be liable for the deaths of innocent victims? What if it was one of YOUR family members? What would their lives be worth to you?

[newgeezer]

her attorneys jumped up and shouted, "Amen!"

No doubt.

[flashbunny]

once again, you have no idea what you are talking about.

You seriously act like a liberal.

[InsureAmerica]

There is no proof this is a dangerous drug. If so, then send it to me. The dude had coronary disease and who knows what else. a lollipop will kill you if there are enough other factors involved, so don't get all high and mighty with me pal...

You probably believe in global warming too. Well, you are correct. The globe has been warming since the last ice age..

[mlc9852]

Could you be more specific as far as "you don't know what you're talking about"? And no, I'm no liberal, just a fair-minded person.