Jurors shed tears during Vioxx testimony

By RICHARD STEWART Houston Chronicle, Thursday 11:17 PM

ANGLETON - There were tears on the witness stand, tears in the gallery and tears in the jury box Thursday as Carol Ernst described the night in 2001 when her husband, Robert, died.

"You might think you know what it's like," she said in a soft voice. "I don't think God ever lets us know the depth of that pain, because I don't think we would survive if we knew."

Ernst believes the once-popular painkiller Vioxx is to blame, and she has sued drug maker Merck & Co. Inc. Her testimony Thursday was at the end of her side's presentation in the trial of her lawsuit. Ernst's case is the first of almost 4,200 lawsuits filed against Merck over the drug, which was withdrawn from the market in September.

As she spoke, two of her daughters sobbed openly in the front row of the dark-paneled courtroom.

She sat, turned toward the jury of eight men and six women (including two alternates), speaking as if she were talking to them individually. All but one looked back.

One juror, the one closest to her, held his head down, one hand held up to his brow as if to brush away tears.

A routine day
The day Robert Ernst died had been much like other Sundays during the time they knew each other, his widow said. They had dated for three years and had been married a little less than a year.

He worked that day at the local Wal-Mart, came home and went running while she visited a patient at the hospice where she worked. Then they drove to a store to get her a pair of sandals for a trip they planned to take.

They had dinner at the same restaurant where they had their first date, Ernst said.

They went to bed early, she said, because he had to get up about 3:45 a.m. to get to work. For some reason she woke up about 10:20 p.m. and heard a sound that she first thought was him snoring.

When she realized it was the raspy breathing that people often take just before death, she called 911, phoned her two daughters and ran out to bang on a neighbor's door.

Her son-in-law, a helicopter flight nurse, arrived, followed soon by ambulance technicians and a daughter who is an emergency room nurse.

As she stood in another room of the small house, she said she could hear her daughter talking to her husband. "We're here, Bob, we're here to help you. You're going to be OK."

"I thought he was awake and they were talking to him," she said.


'How can this be?'
Her daughter, Shawna Sherrill, testified Wednesday that she always talked like that to unconscious patients, knowing her voice might be the last thing they hear.

Later, when an emergency room doctor said her husband was dead, Ernst said she was devastated. "I wondered, how can this be?"

It was the end of a storybook romance that she once thought would never be a part of her life.

Earlier, Ernst said she had married very young, had four children and divorced. Finding another man had no part in her plans for her life.

Then, in 1997, her youngest daughter introduced her to a man who taught classes at a local fitness center.

Soon they were going to wildflower festivals, arts festivals and all kinds of other events together. They went to a local kite festival and bought stunt kites. He taught her grandson to fly the kite.

As she talked, her attorney, Mark Lanier projected photos of Carol and Robert Ernst onto a large screen.

"Bob was a toucher and a hugger. He would come up behind me while I was doing dishes and put his arms around me and blow in my ear and kiss me," she said.


Feeling guilt
Since his death, she said she seldom sleeps more than a few hours a night. For a long time she slept on the floor in her living room, finding it impossible to sleep in the bed they had shared, or even in a chair that she said seemed to still have his scent.

She is still seeing grief counselors, she said.

Ernst said she feels somewhat guilty, because she told her husband to ask his doctor about Vioxx after seeing an advertisement about the drug.

"If Bob had never met me, he might still be alive because I was the one who told him to ask about the Vioxx," she said.

She said she is sure her husband, who ran marathons, would have never taken the drug if he had known the potential dangers.

Merck contends that Vioxx had nothing to do with Robert Ernst's death because he died of a heart arrhythmia and took the drug less than eight months. The company pulled the drug off the market after a long-term study showed it caused an increased risk of heart attacks and strokes to patients who took it for more than 18 months.

Three weeks of testimony
Lanier has claimed the company deliberately underplayed the cardiac dangers of Vioxx, selling up to $2.5 billion worth of the drug a year.

Ernst's testimony ended almost three weeks of testimony presented by her legal team.

Merck opened its part of the case with testimony by Dr. Alan Nies, a retired Merck executive who headed up the research team that developed Vioxx.

He defended the testing the company did before the drug was released, saying all possible side effects were considered.

Vioxx was considered an important anti-infammatory drug because it promised better protection from ulcers and stomach bleeds caused by older pain killers, he said.

Nies is scheduled to continue his testimony today.

Meanwhile, Texas Attorney General Greg Abbott slammed Merck attorneys for seeking to move his lawsuit against the drug maker from state to federal court. Abbott's lawsuit seeks $240 million for money the state spent on Vioxx for Medicaid patients.

"Merck may try to run from the Texas courts, but they will not be able to hide from their scheme to misrepresent the safety of Vioxx to Texans," Abbott said. "The company is clearly trying to evade justice by using these delay tactics."

"Merck is simply exercising its statutory right to have the case heard in the federal court. There is nothing unusual about a defendant exercising that right," said Merck attorney Ted Mayer.