Jury Finds Merck Liable for Death of Vioxx User, Awards $253.5M to Widow

In the first trial related to Merck's COX-2 inhibitor Vioxx, a Texas jury on Friday found Merck liable in the death of Robert Ernst and said Ernst's widow should be awarded $253.5 million in damages, the New York Times reports. Merck, which faces more than 4,200 lawsuits related to Vioxx, withdrew the medication from the market in September 2004 over safety concerns. In the Texas case, plaintiff Carol Ernst alleged that Vioxx caused the death of her husband, Robert Ernst, who died of arrhythmia after taking the medication for eight months (Berenson, New York Times, 8/20). After less than 11 hours of deliberation, the jury of seven men and five women found Merck liable (Kaufman, Washington Post, 8/20). The jury said Carol Ernst should be awarded $229 million in punitive damages and $24.5 million for mental anguish and economic losses. Because punitive damages are capped at $1.6 million in Texas, Ernst would receive no more than $26.1 million total (New York Times, 8/20). Attorneys for Merck said they will appeal.

Jury's Decision
According to the Los Angeles Times, jurors who voted to hold Merck liable said they were influenced by internal documents that showed the company "seemed to care more about profits from the drug than the public's welfare." Juror Stacy Smith said, "They knew, and they still put (Vioxx) out." Juror Lorraine Blas said she examined e-mails and other internal documents in which Merck employees discussed a link between Vioxx and cardiovascular risks. Blas said, "I felt Merck knew something was going on as early as 1997" (Girion/Calvo, Los Angeles Times, 8/20). Juror Rhonda Wade said, "They ignored an FDA warning letter about their marketing and they didn't give (regulators) all of the information" (Japsen, Chicago Tribune, 8/20). In the trial, Attorney Mark Lanier, who represented Carol Ernst, had argued that Ernst's arrhythmia was the result of a heart attack or blood clot that was caused by Vioxx. Attorneys for Merck said Vioxx has not been linked with arrhythmia, arguing that the arrhythmia was not caused by a Vioxx-induced heart attack or blood clot. The defense's case focused on the results of Ernst's autopsy, which found no blood clot.

Juror Comments
Jurors said they were convinced of Lanier's reasoning in part because of videotaped testimony from coroner Maria Araneta, who conducted Ernst's autopsy (New York Times, 8/20). Juror John Ostrom said, "We felt there was a reason he had a heart attack. We felt Vioxx was a reason" (Hays/Agovino, AP/Las Vegas Sun, 8/19). Juror Matthew Pallardy said there "wasn't a very big debate" among jurors over the blood clot, adding, "We kind of figured there was one there, but it went away real quick" (Won Tesoriero et al., Wall Street Journal, 8/22). However, juror James Friudenberg, who voted to not hold Merck liable, said, "I couldn't see it in the science. Mr. Ernst had atherosclerosis." He added, "There are a lot of good people at Merck, ... and I'm sorry it turned out like this" (Los Angeles Times, 8/20). Juror Brandon Beaver, who also dissented, said, "I feel bad he passed away. But I don't feel Vioxx caused it" (Dow Jones/Wall Street Journal, 8/22). Jurors said they decided on the large punitive award to send a message to Merck and other drug makers, according to the New York Times. Juror Derrick Chizer said, "Respect us, that's the message" (New York Times, 8/20). According to Dow Jones/Wall Street Journal, the jurors' discussion on whether Vioxx led to the arrhythmia took "about an hour," and the jurors spent much more time determining the award (Dow Jones/Wall Street Journal, 8/22).

Plaintiff Reaction
Carol Ernst said, "I hope this will be a wake-up call to all drug companies. Consumers and physicians and doctors have a right to know about all of the risks of the drugs they are taking" (Chicago Tribune, 8/20). Enrst added, "It's nice to have been able to send a message to not only Merck, but the other pharmaceutical companies." Lanier said, "I felt like we had truth and the jury was paying attention." He added, "They had a very tough case to defend. The documents are very difficult for Merck" (Los Angeles Times, 8/20). Lanier said, "The justice system in America works, and it works very well" (New York Times, 8/20). He added, "My message to Merck is that I'm just warming up" (AP/Las Vegas Sun, 8/19).

Merck Reaction
Merck attorneys said they will appeal Friday's decision and continue to fight each individual lawsuit filed against the company (Washington Post, 8/20). In a statement Friday, attorneys for Merck indicated they might base their appeal on whether Judge Ben Hardin "had wrongly allowed irrelevant or scientifically flawed testimony," according to the New York Times. Merck attorney Kenneth Frazier in the statement said, "We believe that we have strong points to raise on appeal. There are other Vioxx cases coming to trial and we will vigorously defend them" (New York Times, 8/20). Frazier added, "We know we acted responsibly. ... We intend to vigorously defend individual Vioxx cases one by one" (Berenson, New York Times, 8/21). Merck attorney Jonathan Skidmore said, "We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death." Skidmore said, "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" (Washington Post, 8/20). Kent Jarrell, a spokesperson for Merck's defense team, said, "Everybody at Merck is upset about this," adding, "They believe in the drug and believe that Merck's decisions are based on science and in the interest of the patient" (Goldstein/DiStefano, Philadelphia Inquirer, 8/20).

Upcoming Trials
Andrew Birchfield, co-lead counsel for a committee overseeing all federal lawsuits related to Vioxx, said there are about 4,500 federal Vioxx lawsuits already filed and about 3,000 state cases. One of the first federal cases, in which Birchfield is an attorney for the plaintiff, is schedule to begin in New Orleans in November (Washington Post, 8/20). In that case, plaintiffs claim Vioxx caused the death of a Florida man who died in 2001 of a blood clot. Meanwhile, a trial is scheduled to begin next month in New Jersey for a case in which a man claims Vioxx caused his heart attack (AP/Las Vegas Sun, 8/19). In the federal cases, tighter guidelines on the type of testimony permitted might benefit Merck, legal experts said. The upcoming federal case might "be Merck's best shot at an early win," according to the AP/Long Island Newsday (Agovino, AP/Long Island Newsday, 8/21). In addition to the current cases, legal and financial experts predict "a flood of new suits" as a result of Friday's decision, according to AP/Las Vegas Sun reports (AP/Las Vegas Sun, 8/19).

Merck's Defense Strategy
Some legal experts said Merck might have to rethink its defense strategy. Peter Bicks, a defense lawyer with New York law firm Orrick, Herrington & Sutcliffe, said, "It is a very serious problem because future plaintiffs' lawyers now have road map for the case completely laid out for them." He added, "Apparently, Lanier was successful in painting the company as one that put profits over health and hid information." Lawyer David Berg, author of "The Trial Lawyer: What It Takes to Win," said, "Merck's lawyers underestimated Lanier. Those of us who've watched him in the courtroom know that win or lose, he is one of the best trial lawyers in the country" (New York Times, 8/20). Arvin Makin, a defense attorney specializing in product liability cases, said it likely would take about six months of trials before Merck decides to make major changes to its defense strategy (Jones, USA Today, 8/22). Birchfield said, "The Texas case was a hard one because of that coroner's report pointing to arrhythmia as the cause of death. But the jury took that information, and all they heard about Merck's bad conduct, and they came to the conclusion that Vioxx caused the death and the company needed to be punished" (Washington Post, 8/20). Benjamin Zipursky, a professor at Fordham University Law School, said, "A Merck loss means the jury believes the plaintiff story about the company's wrongful conduct. That carries into the future" (AP/Las Vegas Sun, 8/19).