Interesting Things For you Late @ Night 2: Appeals court finds for Merck in Texas Vioxx case

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Thursday, May 29, 2008

Appeals court finds for Merck in Texas Vioxx case - MarketWatch

According to the Whitehouse Station, N.J.-based pharmaceutical giant, a Texas appeals court has reversed a 2005 jury verdict that had found Merck liable in the death of Robert Ernst, who died of a heart attack after allegedly taking the medication for several months. The Ernst case was the first Vioxx liability case to go to trial.

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The Texas jury had originally awarded Ernst's widow a massive $254 million, which included $229 million in punitive damages. That award was later greatly reduced by a state judge to around $26 million, with punitive damages reduced to only $1.7 million under a state law that caps such awards.

The Ernsts' lead attorney, Mark Lanier, said his firm plans to file an appeal on behalf of Ernst's widow.

"This decision was handed down by a group of judges who regularly accept campaign contributions from law firms representing corporations that appear in their courts. We will appeal this decision to the United States Supreme Court if necessary," said Lanier, in a statement.

Earlier this month, a Texas state appellate court overturned a $32 million award made in a 2006 Vioxx case that found Merck liable in the heart attack death of another Texas man, Leonel Garza. That award had also been reduced to $7.75 million under Texas law.

Merck also reported Thursday that a New Jersey appellate division has partially overturned a 2006 verdict against the company involving former Vioxx users Thomas Cona and John McDarby. The two plaintiff's cases had been bundled into one under a court order made by a New Jersey judge that aimed at reducing court load presented by thousands of Vioxx cases that had been filed in that state.

In the original verdict, a New Jersey jury found Merck liable in the injury of McDarby, but not of Cona. Both men had asserted they suffered heart attacks after taking Vioxx for some time.

Under Thursday's decision, the appellate court reversed awards against Merck for punitive damages and consumer fraud. The court did, however, uphold an award of compensatory damages to McDarby. According to reports, a jury originally awarded McDarby about $5 million in compensatory damages and $9 million in punitive damages, plus legal fees.

"Today's decisions overturn almost $40 million of damages and attorneys fees previously awarded to plaintiffs at trial," said Bruce Kuhlik, Merck's general counsel, in a statement.

"We intend to seek further review of the portion of the award that remains standing after the New Jersey decision. We continue to believe Merck acted responsibly," Kuhlik added.

Vioxx was taken off the market in September 2004 after a clinical study revealed that patients who took the drug for 18 months or longer ran a significantly higher risk of suffering a heart attack or stroke. Before being recalled, Vioxx was one of Merck's biggest products, with sales of about $2.5 billion.

Merck has repeatedly asserted that it behaved responsibly in its marketing of the product, amid accusations that some executives may have known some time that the drug could cause cardiovascular problems in certain users.

After Vioxx's recall, thousands of alleged users filed suits against the company, mostly in the state courts of New Jersey, where Merck is headquartered, and Texas. Federal suits were compiled by the district court in New Orleans. To date, only a handful of cases have actually made it to trial.

At the onset of the litigation, Merck vowed to fight each and every Vioxx case. But late last year, the drugmaker announced that it had agreed to a deal that would settle about 85% of outstanding individual claims, or about 50,000 cases, for $4.85 billion.
Earlier this month, Merck agreed to pay a total of $58 million to settle a probe conducted by various states attorneys into its marketing practices for Vioxx. The settlement will be shared by 29 states and the District of Columbia.