Ruling limits Merck's liability

RIO GRANDE CITY, Texas -- A judge sided with Merck & Co. yesterday and denied a motion that could have opened the door to a larger damages award in a lawsuit charging that painkiller Vioxx caused the death of a 71-year-old man. State District Judge Alex Gabert refused a plaintiffs' request to ask jurors to decide during deliberations whether Merck had criminally caused the death of an elderly person.

His decision means Merck, under Texas law, will face a maximum of $750,000 for punitive damages, which are awarded to punish bad behavior.

A ruling the other way would have removed all limits.

The company still faces the possibility of unlimited damages for mental anguish if found liable by the jury, which is set to hear closing arguments this morning, then begin deliberations.

Arguments in the trial that began Jan. 24 had been scheduled for yesterday but were postponed because of a death in the family of one of the 12 jurors.

This is the fifth Vioxx lawsuit to go to a jury out of more than 10,000 filed against the New Jersey-based drug giant and each is being closely watched to determine how much financial liability the company ultimately will face. Merck pulled the $2.5 billion-a-year drug from the market in September 2004 after a study showed it doubled heart attack and stroke risk for those who took it at least 18 months. In this case, Leonel Garza of Rio Grande City died of a heart attack in 2001 after taking Vioxx for no more than 24 days for arm pain.

His family's attorneys charge that Garza was a victim of Merck's greed. They said evidence shows Merck knew the dangers of the drug as early as 2000 but told no one and kept it on the market.

Merck lawyers countered that Garza died of heart disease he had had for 23 years, not because of the medicine.

They said Merck did not withhold information about Vioxx and pulled it from the market on a timely basis.

Kathryn Snapka and Kevin Dubose, lawyers for the Garzas, asked Gabert to include the question about Merck's criminal behavior.

But Merck successfully argued it had committed no crime and therefore the judge should forbid the question. ''The question is whether or not the Starr County district attorney could prosecute Merck for the death of Mr. Garza. There's no way in the world," said Merck lawyer Stephen Tipps. ''There's absolutely no evidence Merck was aware of the existence of Mr. Garza."

The case follows a New Jersey trial in which a jury awarded a 77-year-old man $13.5 million in damages for a heart attack he suffered after taking Vioxx for more than four years. The jury found that Vioxx did not cause the heart attack of a second defendant.

The $13.5 million in jury awards led some analysts to think Merck's Vioxx legal costs may ultimately compare to the $21 billion in charges Wyeth has faced for its withdrawn ''fen-phen" diet drugs.

In two other trials, including the only federal case so far, which was in New Orleans, Merck has prevailed.