Vioxx jury finds Merck liable

Merck & Co. liable for the death of a man who took the painkiller.

Jurors awarded Robert Ernst's widow, Carol, $253.4 million in damages, which is a combination of his lost pay as a Wal-Mart produce manager, mental anguish, loss of companionship and punitive damages.

Carol Ernst began to cry when the verdict was read while her attorneys jumped up and shouted, "Amen!"

Later, she told reporters, "I'm relieved. This has been a long road for me. But I felt strongly that this was the road I needed to take so other families wouldn't suffer the same pain I felt at the time."

She called the verdict a "wake-up call" for pharmaceutical companies.

Immediately after the verdict, her team of attorneys huddled and hugged and repeated, "Amen, amen," while plaintiff's lawyer Ben Morelli told Ernst, "It's your jury."

"Anyone who said they are too small town or won't understand, they are crazy," said her lawyer, Mark Lanier. "They know truth and they know justice."

"Merck should come to the table and accept responsibility," Lanier said.

The jury broke down the award as $450,000 in economic damages - Robert Ernst's lost pay as a Wal-Mart produce manager; $24 million for mental anguish and loss of companionship; and $229 million in punitive damages.

But the punitive damage amount is likely to be reduced as state law caps punitive damages at twice the amount of economic damages - lost pay - and up to $750,000 on top of noneconomic damages, which are comprised of mental anguish and loss of companionship.

That would give Ernst a maximum of $1.65 million in possible punitive damages, meaning her total damage award could not exceed $26.1 million.

The case drew national attention from pharmaceutical companies, lawyers, consumers, stock analysts and arbitragers as a signal 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. Merck said it plans to appeal.

A seven-man, five-woman jury from a semi-rural county south of Houston deliberated for 10 1/2 hours over two days before blaming the drug for killing Ernst in his sleep in 2001. Jurors rejected Merck's argument that Ernst died of clogged arteries rather than a Vioxx-induced heart attack that led to his fatal arrhythmia.

Merck response
Jonathan Skidmore, a member of Merck's defense team, said today, "We believe that the plantiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death."

"There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst's death, along with coronary atherosclerosis."

Merck also contends the case did not call for punitive damages.

"Merck acted responsibly - from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine when it did," Skidmore said.

"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," said Kenneth C. Frazier, senior vice president and general counsel of Merck, in a written statement. "Our appeal is about fundamental rights to a fair trial."

The company will base its appeal on:

— Allowing opening 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.

— Allowing undisclosed surprise witness and expert testimony contrary to Texas law.

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.

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.

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 - lost pay - and up to $750,000 on top of non-economic damages, which are comprised of mental anguish and loss of companionship. Non-economic damages have no limit in Texas except in medical malpractice cases, which doesn't apply to the Ernst case.

Another trial is set to begin in New Jersey, where Merck is based, next month, and the first federal trial in New Orleans is slated for late November.

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Chronicle reporters Ruth Rendon and Richard Stewart, and The Associated Press contributed to this report.