Merck Vows to Fight All Comers Despite Texas Jury's Condemnation of Vioxx to Tune of $253 Million
On August 19, 2005 Merck & Co. was found negligent in the nation's first Vioxx trial, Carol A. Ernst v. Merck & Co. Inc., in the District Court of Brazoria County, Texas. This wrongful death case concerned Robert Ernst, a 59-year-old triathlete who used Vioxx for eight month before his death. Mr. Ernst's death certificate said he died of an arrhythmia, or irregular heartbeat. At the Texas trial, the attorneys for Carol Ernst argued that her husband actually died from a Vioxx-related heart attack.
The Texas jury of seven men and five women heard competing evidence during the five-week trial about whether Vioxx caused Mr. Ernst's death and in the end, by a 10 to 2 vote, found the drug company Merck liable for this death. In turn, the Brazoria County jurors awarded the plaintiff $24 million in actual, or compensatory, damages, and then another $229 million in punitive damages, for a total of around $253 million.
Texas law, however, limits the amount of punitive damages a plaintiff can receive despite what the jury believes is justified. By operation of this statutory "cap" the punitive damages aspect of the Ernst case jury verdict will be reduced by the judge to $1.6 million, meaning the final overall award will be about $26.1 million -- if the verdict is not modified or overturned by Texas appellate courts.
According to a company press release issued the same day that the trial verdict was handed down, Merck said its lawyers are considering the following grounds for appeal as concerns the Ernst Vioxx case:
"Allowing opinion testimony to be given to the jury by unqualified experts";
"Allowing opinion testimony that was not based on a reliable scientific basis as required by Texas law";
"Allowing evidence with no relevance to the issues of the case, which unfairly prejudiced the jury"; and,
"Allowing undisclosed surprise witness and expert testimony contrary to Texas law."
Before the Ernst trial verdict, Merck had said every Vioxx lawsuit would be contested in court, rather than settled out of court. The drug company's primary "handler" as regards the Vioxx litigation, Kenneth C. Frazier, senior vice president and general counsel of Merck, reiterated that defiant stance after the Texas jury's verdict was announced.
"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict.... Our appeal is about fundamental rights to a fair trial.... There are other Vioxx cases coming to trial and we will vigorously defend them one by one over the coming years."
State court Vioxx trials are scheduled to begin in the next few months in New Jersey and possibly California and Alabama. The first federal court Vioxx trial is scheduled for November in New Orleans.
(Posted by: Tom Lamb)