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Merck vows to appeal Vioxx damage award

/ Source: The Associated Press

Pharmaceutical giant Merck & Co. said it will appeal a $253.4 million damage award given to the widow of a man who took its once-popular painkiller drug Vioxx in the first of thousands of lawsuits to go to trial.

The award, handed down by a jury Friday, is likely to be drastically reduced to no more than $26.1 million because Texas law caps punitive damages — which made up $229 million of the total.

But attorneys for plaintiff Carol Ernst were no less ecstatic when the verdict was read, gleefully shouting “Amen, amen,” while Ernst began to cry. Her lawyer, Mark Lanier, hugged her.

“This is right. Justice is done, amen,” said Lanier, who trained as a preacher before he turned to law.

Jurors in the semi-rural county about 60 miles south of Houston rejected Merck’s argument that Robert Ernst, 59, died of clogged arteries rather than a Vioxx-induced heart attack that led to his 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.

Ernst 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, which voted 10-2 in favor of Ernst, 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.

But state law caps punitive damages at twice the amount of economic damages and up to $750,000 on top of noneconomic damages, which are comprised of mental anguish and loss of companionship.

“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 majority of jurors believed a heart attack triggered the Texas man’s fatal arrhythmia, or irregular heartbeat.

“It could have been prevented,” he said. “That is the message (to pharmaceutical companies). Respect us.”

But James Friudenberg, one of the two jurors 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.

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

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 that 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.

However, Dr. Maria Araneta, the pathologist who performed Ernst’s autopsy, testified for the plaintiff that a blood clot she couldn’t find probably caused a heart attack that triggered Ernst’s 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.

Vioxx inhibits an enzyme known as COX-2, which thins the blood. That feature allows it and other drugs in its class — Pfizer’s Bextra and Celebrex — to relieve acute pain and arthritis without causing stomach bleeds or ulcers, as painkillers such as aspirin can.

A U.S. Food and Drug Administration panel concluded in February that Vioxx, Celebrex and Bextra all pose heart risks but should be available to consumers.

In April, however, Pfizer withdrew Bextra from the market at the FDA’s request when the agency said it carries risk of serious and sometimes fatal skin reactions in addition to heart attacks and strokes. Celebrex remains available to consumers.