ANGLETON, Texas – Jurors in the first lawsuit against Vioxx to go to trial said Friday that they intended to send a message to Merck & Co. and other drug manufacturers with their $253 million verdict.
“Stop doing the minimum to put a drug on the market,” juror Derrick Chizer said. “Go out there and do your very best … Merck makes a lot of medicines. They’re staking our lives. Be responsible.”
The comment came after the jury Friday decided Merck, the maker of the painkiller, should pay the big dollar amount to Carol Ernst, whose husband Robert died suddenly in 2001 of heart problems after taking Vioxx for pain in his hip and hands.
Ernst blamed her husband’s death on Merck’s failure to disclose increased risks of heart attack and stroke associated with Vioxx in a timely way. Jurors said $229 million in damages was due to Merck’s delay in adding a warning label so the company could avoid losing market share.
Merck lawyers said the verdict was not supported by proper evidence and that they expect to overturn it on appeal. Even if the verdict stands, legal experts said the damage probably would be substantially reduced.
“The company acted responsibly every step of the way,” lawyer Ted Mayer said. “This case isn’t over yet.”
Analysts said the verdict was important because it could affect the course of future litigation. Some 4,300 Vioxx cases already have been filed, and analysts say the number could grow to 100,000 with potential liability as high as $20 billion for Merck.
“Merck has a lot to worry about,” said John Calfee, an American Enterprise Institute scholar who had written about the Vioxx controversy.
Legal experts said the verdict likely would be reduced under damage caps imposed by the Texas Legislature as part of the tort-reform movement. The more realistic number is probably about $26 million, said SMU law Professor Bill Dorsaneo.
That’s still a big number, Calfee said, considering the number of potential claims.
Ernst, surrounded by happy lawyers, friends and family, wept. “I hope this will be a wake-up call to all pharmaceutical companies,” she said.
Evidence
Jurors said they were swayed by evidence that Merck:
• Did not fully disclose the cardiovascular risks of Vioxx;
• Pushed the FDA for fast-track approval;
• And pressured doctors to prescribe the medication, all in a race for profits.
Merck pulled Vioxx off the market in September after a study showed it nearly doubled the risk of heart attack or stroke, but jurors said Merck knew about the risks a lot earlier.
“Merck did not let us know the full problems of the drug,” juror Rhonda Wade said. “I was shocked.”
Jurors said they rejected Merck’s argument that Robert Ernst died of arrhythmia, or an irregular heartbeat, a problem no study ever linked to Vioxx. Jurors cited testimony that arrhythmia can be caused by a heart attack that is undetectable in sudden death.
“There had to be a trigger,” Chizer said.
Jurors delivered their verdict as answers to questions posed by the judge, awarding damages for several categories of harm.
Economic losses – care, maintenance and support in the past and future – were $450,000; noneconomic – loss of companionship and mental anguish – were $24 million.
Punitive damages – intended to punish for malicious conduct – were $229 million. Jurors said they picked that number because a Merck document said the company would lose that much if it agreed to FDA demands for a stronger label.
Dorsaneo said Texas damage caps won’t affect either the economic losses or the noneconomic losses – a total of $24,450,000.
But he said the law limits punitive damages to two times economic losses and $750,000 for noneconomic harm.
That would put the maximum punitive award at $1.65 million, well below the $229 million awarded by the jury.
Two jurors dissented. Texas law only requires 10 to agree for a verdict in a civil case. And one of them spoke out. James Friudenberg said there was no evidence that Vioxx caused Ernst’s death and that the damages were too high.
“I don’t know where they got that number,” he said. “I’m sorry Bob’s not here … But I also feel sorry for the employees at Merck. There’s a lot of good people there.”
Carol Ernst’s lawyer, prominent Houston personal-injury lawyer Mark Lanier, said the verdict was just.
“I’m tired of people being soft on corporate crime,” Lanier said. “I think it’s an absolute crime that a corporation can put profits over safety.”
Calfee, the American Enterprise Institute scholar, said the big damage award could be a threat to any drugmaker who makes medicines that have benefits but also have side effects that are common for other reasons.
If juries are going to pin all those side effects on manufacturers, “that will make it impossible to market a lot of useful drugs,” Calfee said. “Juries could drive a lot of good drugs off the market.”
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