Vioxx award excessive, though understandable

Texas' cap on punitive damages will reduce multi-million-dollar payoff; meanwhile, Merck urgently needs to clean up its act.

August 29, 2005

If pharmaceutical giant Merck had been on trial in Angleton for callousness and duplicity in the selling of the painkiller Vioxx, the jury's $253 million damage award would be a pittance of what it deserved.

Certainly the evidence showed a company more focused on profit than on its obligation to be candid with doctors and patients. They needed to know that though Vioxx alleviated pain without causing stomach bleeding, it had a potential to cause heart attacks. One patient was Robert Ernst, 59. He had been taking Vioxx for seven months when he died.

But Merck wasn't on trial for being greedy. The lawsuit filed by Ernst's widow, Carol Ernst, claimed Vioxx directly led to her husband's death, this despite testimony that his arteries were clogged. One medical expert called Ernst "a walking time bomb," so dangerous was his medical condition. Jurors, however, were more persuaded by plaintiff lawyer Mark Lanier's argument that this was a story of a cover-up.

Tactically, Merck's attorneys blew it. They bad-gered the widow for more than an hour on the witness stand, a good ploy if you want to lose any sympathy for your side from a local jury. The company's top brass testified by videotape, leaving jurors to wonder why.

But no amount of legal theatrics could have been any worse for Merck's case than its own documents. They showed it had fought re-labeling Vioxx bottles to heighten awareness of its potential for heart problems, even though its own top scientist said the heart risks were great. A lap-dog Federal Drug Administration provided little restraint.

Such a bloated award justifies Texas' lawsuit reform capping punitive damages; Merck's liability will be closer to $26 million - that is, if Texas appellate judges are also convinced Ernst's death was directly tied to the drug.

The larger question is what this means for the public and the health industry. One indication is the queasiness pharmaceutical companies now feel about research and development of new drugs. That means people fighting disease and ailments will suffer needlessly. Merck, which now faces thousands of Vioxx lawsuits, may emerge as a weakened company.

There is a basic mistaken impulse that drives such lawsuits: a belief that life should be risk-free. Medicine, like life, has no such promise. What doctors and patients should demand is the information to make an informed decision about whether the risks were worth the benefits of a valuable drug.

Corpus Christi Caller Times