Merck Rests Its Case in Vioxx Trial

Aug 16, 2005 2:07 pm US/Eastern

ANGLETON, Texas (AP) Merck & Co. rested its case Tuesday and jurors heard the last bit of testimony in the nation's first civil trial related to the drug maker's painkiller Vioxx, bringing the panel in the five-week case a step closer to deciding its outcome.

State District Judge Ben Hardin told jurors they would hear closing arguments from attorneys on both sides Wednesday. The judge released jurors at midday Tuesday so lawyers could finalize the instructions Hardin will give the seven-man, five-woman panel before deliberations begin.

The case has drawn national attention from pharmaceutical companies, lawyers, consumers and stock analysts as the first of several tests 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.

Another trial is set to begin next month in Merck's home state of New Jersey, and the first federal trial is scheduled for November in New Orleans.

In the Texas case 40 miles south of Houston, 15 witnesses testified, some by videotaped deposition, since lawyers presented opening statements July 14. Of those, two-thirds testified for plaintiff Carol Ernst, including Ernst herself.

She alleges Vioxx caused the sudden death of her husband, Robert Ernst, in 2001. Robert Ernst, a Wal-Mart produce manager and marathon runner, had taken the drug for eight months to ease pain in his hands.

Merck took Vioxx off the market in September when a study showed it could double risk of heart attack or stroke if taken for 18 months or longer. Whether it caused Ernst's death will be a key question for jurors.

On Tuesday, Dr. Benedict Lucchesi, a pharmacologist who testified for the plaintiff, returned to the witness stand to rebut testimony from expert witnesses who said on Merck's behalf that Ernst's clogged arteries caused his death from arrhythmia, and Vioxx had nothing to do with it.

Lucchesi, who has studied arrhythmias — or irregular heartbeats — for 50 years, testified this month that Vioxx "contributed significantly" to Ernst's death. He said Vioxx inhibits the body's natural ability to thin the blood, which can lead to the formation of blood clots.

On Tuesday, he reiterated his theory, noting that a Vioxx-induced clot could have dissolved or been dislodged, preventing the pathologist who performed the autopsy from finding it.

"It's going to be nearly impossible to find that," he said.

Merck has repeatedly pointed to Ernst's autopsy report, which attributes his death to an arrhythmia secondary to clogged arteries. The company says no studies link Vioxx to arrhythmia, so the drug couldn't have caused his death.

But Carol Ernst alleges a Vioxx-induced heart attack is to blame, but her husband died too fast for his heart to show damage.

Merck lawyer David Kiernan on Tuesday questioned Lucchesi on his theory that vigorous CPR could have broken up a blood clot into "microemboli," or smaller bits.

"There is no evidence of microemboli in this case, correct?" Kiernan asked.

"We don't know that because they're hard to find," Lucchesi said.

The pathologist who performed the autopsy opined that vigorous CPR could have dislodged a clot, and that could have led to a heart attack she said more than likely caused Ernst's fatal arrhythmia. She didn't say Vioxx was responsible, noting she knew little about the drug in 2001, but Lucchesi was among three plaintiff's experts who said Vioxx triggered Ernst's death.

Two other cardiology and pathology experts testified on Merck's behalf that Ernst died from clogged arteries — one of which was blocked by up to 75 percent. They said the autopsy report was valid, but that pathologist's theory of a heart attack causing the arrhythmia was not.