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Jury comes in against Vioxx maker

Panel in Texas awards widow $253.4 million

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Plaintiff Carol Ernst and attorneys Randy Moore and Ben Morelli react to the jury's verdict in her favor in her case against Vioxx maker Merck Co. Friday. The jury deliberated more than 10 hours before deciding Vioxx caused her husband's death.

Plaintiff Carol Ernst and attorneys Randy Moore and Ben Morelli react to the jury’s verdict in her favor in her case against Vioxx maker Merck Co. Friday. The jury deliberated more than 10 hours before deciding Vioxx caused her husband’s death.

Pat Sullivan, Associated Press

ANGLETON, Texas — A Texas jury found pharmaceutical giant Merck & Co. liable Friday for the death of a man who took the once-popular painkiller Vioxx, awarding his widow $253.4 million in damages in the first of thousands of lawsuits pending across the country.

The Texas case may influence hundreds of Vioxx cases that have been filed in Utah, according to Michael Burg, a Denver attorney and court-appointed liaison overseeing Vioxx cases in the Rocky Mountain area. He expects some of these Utah cases will come to trial in the summer or fall of 2006.

Friday's jury award, Burg said, proves that "a very conservative population, where a large majority of jurors are Republicans, realized we have a drug company that puts profits over safety. . . . Out here in the West, where people look to the jurors to be more conservative, I think it's a warning sign for Merck. People are people, and they won't tolerate giant corporations that put greed and money over the safety of patients."

A seven-man, five-woman jury deliberated for 10 1/2 hours over two days before returning the Texas verdict in a 10-2 vote. But the damage award is likely to be drastically cut to no more than $26.1 million because Texas law caps the punitive damages that made up the bulk of the total.

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

Jurors in the semi-rural county rejected Merck's argument that Robert Ernst, 59, died of clogged arteries rather than a Vioxx-induced heart attack that led to fatal arrhythmia. Ernst, a produce manager at a Wal-Mart store, ran marathons and taught aerobics classes on the side.

The case drew national attention from pharmaceutical companies, lawyers, consumers, stock analysts and arbitrageurs 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.

Ernst's widow called the verdict a "wake-up call" for pharmaceutical companies. "This has been a long road for me," she told reporters later. "But I felt strongly that this was the road I needed to take so other families wouldn't suffer the same pain I felt at the time."

After news of the late-afternoon decision, Merck shares fell 7.7 percent to close at $28.06, wiping away almost $5.2 billion in market capitalization.

Merck lawyer Jonathan Skidmore said the appeal would center on what he termed "unreliable scientific evidence."

"It'll be based on the fact that we believe unqualified expert testimony was allowed in the case; there were expert opinions that weren't grounded in science, the type that are required in the state of Texas," he said. "We don't believe they (plaintiffs) met their burden of proof."

The jury awarded $450,000 in economic damages for Robert Ernst's lost pay, $24 million for mental anguish and loss of companionship and $229 million in punitive damages.

Texas 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 composed of mental anguish and loss of companionship.

That would give Ernst a maximum of $1.65 million in possible punitive damages, meaning her total damage award could not exceed $26.1 million.

"This case did not call for punitive damages," Skidmore said in a prepared statement. "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."

Juror Derrick Chizer, who voted for Ernst, said the 10 like-minded jurors believed a heart attack triggered the Texas man's fatal arrhythmia. "It could have been prevented," Chizer, 43, said. "That is the message (to pharmaceutical companies). Respect us."

But juror James Fruindenberg, one of the two who voted for Merck, said he "couldn't go with the probabilities" of what caused Robert Ernst's death. "I think there are a lot of good people there who care," he said of Merck.

Merck pulled Vioxx, a $2.5 billion seller, from the market in September 2004 when a long-term study showed it could double risk of heart attack or stroke if taken for 18 months or longer. By then, more than 20 million Americans had taken the medicine, which along with Pfizer Inc.'s Celebrex, was one of a class of COX-2 inhibitor drugs once dubbed as "super aspirin."

Another Vioxx trial is set to begin in New Jersey, where Merck is based, next month, and the first federal trial in New Orleans is slated for late November.

If Merck loses in those cases, experts predict it will open the floodgates for more lawsuits and could force the drug company to settle cases. Analysts have speculated Merck's liability could reach $18 billion. But if Merck prevails in future cases, lawsuits could fade away, easing some of the pressure on its stock.

Unlike many other pending lawsuits involving obvious heart attacks, the Ernst case centered on an autopsy that attributed his death to an arrhythmia secondary to clogged arteries. That autopsy — and the coroner who performed it — proved critical to the trial's outcome.

Merck pointed to the autopsy as proof that Vioxx could not have caused the death of Ernst, who ran marathons and taught aerobics.

However, Dr. Maria Araneta, the pathologist who performed Ernst's autopsy, testified for Ernst that a blood clot that she couldn't find probably caused a heart attack that triggered arrhythmia. She also said the heart attack killed Ernst too quickly for his heart to show damage.

While Araneta couldn't say definitively that he had a blood clot and heart attack, she insisted they were the likely culprits in triggering an arrhythmia, which she said wouldn't happen on its own.

Araneta didn't blame Vioxx, however, noting she knew little about the drug when she performed Ernst's autopsy. But three plaintiff's experts in arrhythmia, cardiology and public health did.

Merck's experts agreed with Araneta's conclusions in the autopsy, but not her undocumented theory of what triggered the arrhythmia.


Contributing: Elaine Jarvik, Deseret Morning News.