Vioxx jury asks to see pathologist testimony in deliberations

ANGLETON — Jurors in the nation's first Vioxx-related civil trial asked today to hear again what could be crucial testimony from a pathologist who autopsied a man who took Vioxx and later died of heart problems.

A little more than two hours into their second day of deliberations, lawyers said jurors asked for a replay of testimony from Dr. Maria Araneta, who attributed the 2001 death of Robert Ernst to an irregular heartbeat secondary to clogged arteries. The panel had yet to specify which part it wanted to hear, and any replaying of testimony must take place in open court.

Vioxx-maker Merck & Co. used that autopsy to support the company's contention that the painkiller had nothing to do with Robert Ernst's death.

Merck pulled the $2.5 billion seller from the market last year after a study showed it could double risk of heart attack or stroke if taken for 18 months or longer, but the company says no studies link Vioxx to arrhythmia, or irregular heartbeat.

Plaintiff Carol Ernst alleges Vioxx caused a heart attack that led to the fatal arrhythmia.

Araneta, who now works at a hospital in the United Arab Emirates, testified that a blood clot probably caused a heart attack that triggered Ernst's arrhythmia. She said vigorous CPR likely dislodged the clot so she couldn't find it during the autopsy, and his death was too sudden to leave evidence of the heart attack.

Merck lost appeals to block jurors from hearing Araneta's testimony during the trial, which was presented via videotaped deposition.

Araneta didn't blame Vioxx for causing a heart attack, noting she knew little of the drug in 2001. Other plaintiff's experts blamed the drug. Experts who testified for Merck said Araneta's written conclusions in the autopsy were valid, but her opinions expressed more than four years later were not.

The trial that began July 14 was the first of more than 4,200 lawsuits in the nation to go before a jury. The case has drawn national attention as the first test of Merck's legal fate, and analysts have speculated Merck's liability could reach $18 billion.

Merck launched Vioxx in 1999 with great fanfare to relieve arthritis and acute pain while cutting risk of stomach bleeding by inhibiting a blood-thinning enzyme. Some 20 million people took Vioxx when it was available to consumers.

Carol Ernst's lawyer, Mark Lanier, asked jurors to award her at least $40 million in damages.

He suggested during closing arguments that her mental anguish and loss of companionship damages could reach $229 million or more. Lanier said Merck reaped that amount from Vioxx sales in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The U.S. Food and Drug Administration suggested the changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller, naproxen.

In Texas, punitive damages are capped at twice the amount of economic damages — such as lost wages — and up to $750,000 on top of non-economic damages, such as mental anguish and loss of companionship. But the non-economic damages have no limits in this case.