For Merck, Vioxx Paper Trail Won’t Go Away

Bad facts. Plaintiffs’ lawyers love that term. Merck may grow to hate it.

On Friday, a Texas jury found Merck liable for the death of Robert C. Ernst, who died in May 2001 after taking Vioxx, a painkiller made by the company. After two days of deliberations, the jury said that Carol Ernst, Mr. Ernst’s widow, should be awarded $253.5 million.

In interviews after the six-week trial, jurors said they had concluded from the testimony and documents presented by Mrs. Ernst’s lawyers that Merck was long aware of Vioxx’s potential heart risks but hid those risks from patients. To the jurors, the evidence added up to a mass of damaging bad facts that overwhelmed the company’s defense.

Merck’s stock price fell almost 8 percent Friday

Jury: Merck was negligent

Merck has been held liable by a Texas jury in the first lawsuit involving its former blockbuster drug Vioxx, in a case that could have a profound effect on thousands of other cases filed against the company.

Plaintiff Carol Ernst has won her lawsuit in Texas Superior Court in Angleton, which blames Vioxx for the 2001 death of her husband, Robert Ernst, a 59-year-old marathon runner and Wal-Mart worker who was taking the arthritis painkiller at the time of his death. Ernst died of a heart attack.

The verdict held Merck liable for the death. Jurors voted 10-2 in favor of Ernst.

The jury awarded more than $250 million in total damages — $24 million to Carol Ernst for mental anguish and loss of companionship, and $229 million in punitive damages. Ernst’s Houston-based lawyer, Mark Lanier, said the punitive-damages figure was based on “the money Merck made and saved by putting off their product label changes.”

Lanier had been seeking $40.4 million in damages, and after the verdict, Lanier said that he expected the punitive-damages award to be reduced according to Texas law.

“Justice is a beautiful thing, isn’t it?” Lanier told reporters following the verdict.

Merck said it would appeal the decision. “We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst’s death,” said Jonathan Skidmore, a member of Merck’s legal defense team, according to a statement released by Merck.

Jury Finds Merck Liable in Vioxx Death and Awards $253 Million

In the first verdict of a Vioxx-related personal-injury lawsuit, a Texas jury found the drug’s maker, Merck, liable and awarded $253.5 million to the widow of Robert Ernst, who died in 2001 after taking the painkiller and arthritis medicine.

After deliberating for a day and a half, the jury of seven men and five women awarded Mr. Ernst’s widow Carol $24.5 million for mental anguish and economic losses. The jury also awarded an additional $229 million in punitive damages after finding that Merck had acted recklessly in selling Vioxx with knowledge of the risks associated with taking the drug. Two jurors dissented from the verdict, which did not have to be unanimous.

Merck plans to appeal the verdict, and such large judgments are typically reduced by higher courts.

Judge Ben Hardin of the Texas District Court announced the verdict on the fourth floor of the Brazoria County Courthouse in Angleton, about 40 miles south of downtown Houston, shortly after 1:45 p.m. Central Time.

Mrs. Ernst, her family and lawyers erupted in cheers and began to hug each other.

“The justice system in America works and it works very well,” W. Mark Lanier, the lead lawyer for Mrs. Ernst, said.

Jonathan Skidmore, a lawyer for Merck, the nation’s third-largest drug maker, said that the company continued to believe it had properly researched and marketed Vioxx.

“We believe the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst’s death,” Mr. Skidmore said.

With a flood of Vioxx lawsuits soon to reach juries, the size of the verdict may have important implications for both Merck and the entire drug industry, lawyers and analysts said. More than 4,000 Vioxx-related cases have been filed.

Merck has said it will fight every Vioxx lawsuit in court rather than settle cases and it reiterated that stance in a statement issued after the verdict was announced.

But today’s judgment illustrates the dangers of that strategy, especially because Mr. Ernst’s case had been viewed as relatively weak, lawyers said.

The jury award represents about 1.1 percent of Merck’s 2004 revenue, $22.9 billion, but it accounts for more than a third of the $675 million the drug maker has set aside for its Vioxx liabilities thus far.

The jury’s decision illustrates the legal dangers that drug makers face when they aggressively advertise their medicines to consumers, a practice that spread widely in the late 1990’s.

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