Merck told to pay $253m in Vioxx suit
Texas jury says drug firm liable in man's death
A Texas jury yesterday awarded $253 million to the widow of a man who died after taking the painkiller Vioxx, in the first of thousands of wrongful death lawsuits filed against the drug's maker,
The verdict caused the company's stock to plummet and may trigger many more lawsuits. However, a Texas cap on punitive damages could drastically reduce the amount of the award.
Carol Ernst's lawyer, Mark Lanier, argued in court that Merck acted irresponsibly by hiding Vioxx's risks while mounting an aggressive marketing campaign. He convinced the jury that the drug caused 59-year-old Robert Ernst's death in 2001 from an irregular heartbeat.
Merck pulled Vioxx from the market in September after a study found it doubled the risk of heart attacks and strokes after 18 months of use. It was one of a new generation of painkillers that were supposed to have fewer side effects than older drugs. Vioxx and Bextra, in the same class as Vioxx, have been pulled from the market for safety problems. Another drug, Celebrex, remains on the market, but a warning has been added to its label.
Merck, based in Whitehouse Station, N.J., said it intends to appeal the verdict and will vigorously defend itself against other lawsuits.
''We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death," Jonathan Skidmore, a member of Merck's defense team, said in a statement. ''This case did not call for punitive damages."
The size of the damage award caused some analysts to revise upward Merck's estimated $18 billion liability for Vioxx lawsuits.
But Tony Butler, a Lehman Brothers analyst, predicted the punitive portion of the damage award would be reduced from $229 million to $1.6 million. Butler based his calculations on the section of Texas law that caps punitive damages.
Members of Congress have cited Vioxx marketing as they press for changes in how companies advertise drugs to consumers. And a critic of the Food and Drug Administration, which regulates such ads and monitors the safety of drugs it approves, said the FDA should share responsibility for Ernst's death.
''The Food and Drug Administration was also negligent in the Vioxx case," said US Senator Charles Grassley, Republican of Iowa.
The Texas case has been closely watched by Congress, attorneys, potential plaintiffs, and Wall Street. Some observers thought the case would fail because no studies have linked irregular heartbeats to Vioxx.
Boston attorney Thomas E. Peisch called the amount of the award ''insane." Peisch predicted the verdict, if it stands, could be fatal for Merck since it will likely spur additional lawsuits. That happened in previous mass tort cases -- such as those involving asbestos and silicosis -- which resulted in large jury awards. ''Merck has got to think seriously now about trying to get these cases settled, and I would say they've also got to think seriously about bankruptcy," Peisch said.
Merck's stock dropped 7.7 percent yesterday, closing at $28.06
The award figure was not surprising to other observers because Texas juries are viewed as being friendly to plaintiffs.
Despite its aggressive defense stance, Merck is expected to settle many of the Vioxx cases.
''They should settle as many as they reasonably can," said Harvey W. Gurland Jr., an attorney with Duane Morris, which has successfully handled product liability claims totaling millions of dollars. ''Although, when you have a verdict of $253 million, it makes it very difficult from the defense side to settle. All of the plaintiffs are going to say, 'Here is our benchmark.' "
The verdict could be overturned on appeal, as were high-profile verdicts against tobacco companies that resulted in large awards. Many such ''sensational verdicts" are successfully appealed, said Richard M. Zielinski, a Boston trial lawyer who frequently represents defendants in mass tort cases.
Next month, Merck faces a trial in Atlantic City brought by a former postal worker who had a heart attack in 2001. In November, the first of 1,800 federal cases related to Vioxx will be heard in New Orleans.
Diedtra Henderson can be reached at dhenderson@globe.com; Sacha Pfeiffer at pfeiffer@globe.com. Material from Globe wire services was used in this report. 