First Personal Injury Case
Jurors Say Size of Award Is Message to Makers – Appeal Expected
By Alex Berenson
The New York Times
August 20, 2005
In the first verdict of a personal injury lawsuit involving the pain drug VIOXX, a Texas jury found the drug’s maker, Merck, liable and said the widow of a man who died in 2001 after taking the drug should be awarded $253.5 million.
After deliberating for a day and a half, the jury gave Robert C. Ernst’s widow, Carol, $24.5 million for mental anguish and economic losses. Jurors also said she should be awarded an additional $229 million in punitive damages after finding that Merck acted recklessly in selling VIOXX despite having knowledge of the drug’s heart risks.
Under Texas law capping punitive damages, though, that part of the penalty will automatically be limited to $1.6 million, meaning the overall award would not exceed $26.1 million and could be reduced by Texas appellate courts.
With a flood of VIOXX lawsuits soon to reach juries, the verdict may have important implications for Merck, other makers of the similar painkiller drugs and the entire industry, lawyers and analysts said.
In interviews after the decision, jurors said they had made the large punitive award to send a message that drug makers must disclose the risks of their medicines.
“Respect us, that’s the message,” said Derrick Chizer, a juror. “Respect us.”
Ten of the 12 jurors voted for the plaintiff, the minimum number required to make an award under Texas law. Judge Ben Hardin of the Texas District Court announced the verdict at the Brazoria County Courthouse in Angleton, about 40 miles south of downtown Houston.
When Judge Hardin finished reading, Mrs. Ernst, her family, and her lawyers erupted in cheers and began to hug one another.
“The justice system in America works and it works very well,” W. Mark Lanier, the lead lawyer for Mrs. Ernst, said outside the courtroom.
In a news conference after the verdict, Mrs. Ernst, 60, said that the case, which began three years ago, had been stressful but that she was pleased with the outcome.
“This has been a long road for me,” she said. “I just know that it was a road that I had to run and I had to finish.”
Jonathan Skidmore, a lawyer for Merck, the nation’s third-largest drug maker, said that the company would appeal and that it believed it had properly researched and marketed VIOXX.
“We believe the plaintiff did not meet the standard set by Texas law to prove VIOXX caused Mr. Ernst’s death,” Mr. Skidmore said.
More than 4,000 VIOXX-related cases have already been filed, and lawyers say that they expect 20,000 to 100,000 will eventually be filed.
State trials are scheduled to begin in the next few months in New Jersey and possibly California and Alabama, with the first federal trial planned for November in New Orleans. Lawyers for both sides say the suits will probably be handled individually rather than as class actions.
Merck has said it will fight every VIOXX lawsuit in court rather than settle cases and it reiterated that stance in a statement issued after the verdict was announced.
But Friday’s verdict illustrates the dangers of that strategy, especially because Mr. Ernst’s case had been viewed as relatively weak, lawyers said. For Merck, the verdict is a severe blow, said Peter Bicks, a defense lawyer with Orrick, Herrington & Sutcliffe, a New York law firm not involved in the case.
“It is a very serious problem, because future plaintiffs’ lawyers now have a road map for the case completely laid out for them,” Mr. Bicks said. “Apparently, Lanier was successful in painting the company as one that put profits over health and hid information.”
Merck shares fell $2.35, or 7.7 percent, to close at $28.06 after the verdict was announced. The drop erased about $5 billion from Merck’s market capitalization.
Merck, based in Whitehouse Station, N.J., has not yet set aside any money to cover its VIOXX liabilities, but it has put aside $675 million to cover legal expenses related to its defense.
More than 20 million people had taken VIOXX before the company took the drug off the market last September after a clinical trial indicated that VIOXX increased the risk of heart attacks or strokes in patients taking it for longer than 18 months. The pain drug had annual sales of $2.5 billion until it was withdrawn.
But critics had been saying for years that VIOXX posed safety risks. And during the trial, documents and e-mail messages from Merck scientists disclosed discussions of VIOXX’s potential heart risks as early as 1997, more than two years before the company began selling the drug.
Similar concerns have shadowed Bextra and Celebrex, two other similar painkillers made by Pfizer. Pfizer, the world’s largest drug company, stopped selling Bextra in April; Celebrex remains on the market but now has a prominent warning of its heart dangers.
The jury’s decision also highlights the legal dangers that drug makers face when they aggressively advertise their medicines to consumers, a practice that spread widely in the late 1990’s.
Mr. Lanier repeatedly attacked Merck’s marketing practices during the trial, and jurors said that message resonated with them.
“We expect accountability; we expect them to be open with us; we expect them to be honest with us,” said Marsha Robbins, the forewoman of the jury.
But Dr. Jerry Avorn, a professor at Harvard Medical School and frequent critic of the drug industry, said he did not expect that companies would necessarily cut back on advertising. Since 1997, Wyeth, another major drug company, has made payments it estimates will eventually total $21 billion to settle lawsuits related to deaths caused by its diet drugs, yet Merck did not seem to learn from Wyeth, Dr. Avorn said.
“It is almost as if the next-quarter, bottom-line sales mentality kicks in as soon as the shock of the verdict fades,” he said.
Still, he said, the decision might encourage companies to rethink the way they advertise. Already, some companies have said they will disclose risks more prominently when they advertise drugs directly to consumers.
“Maybe we will see incremental change,” Dr. Avorn said.
The case in Angleton pitted a team led by Mr. Lanier, a part-time Baptist preacher who is considered one of the top trial lawyers in the United States, against a small legal army for Merck that included lawyers from two major corporate law firms, Williams & Connolly and Fulbright & Jaworski.
Throughout the trial, Mr. Lanier’s folksy style seemed to resonate with jurors, while Gerry Lowry and David Kiernan, Merck’s lead lawyers, appeared to struggle to connect.
“Merck’s lawyers underestimated Lanier,” said David Berg, a Houston lawyer and author of “The Trial Lawyer: What It Takes to Win” (American Bar Association, 2003). “Those of us who’ve watched him in the courtroom know that win or lose, he is one of the best trial lawyers in the country.”
Merck’s defense in the case was centered on the fact that Mr. Ernst’s autopsy found that he died of an arrhythmia, or irregular heartbeat. Clinical trials have not linked VIOXX to arrhythmias. For that reason, many lawyers had predicted that Mr. Lanier might have a difficult time winning the case.
But Mr. Lanier argued that Mr. Ernst’s fatal arrhythmia was actually produced by a heart attack that killed him so quickly it did not produce muscle damage visible in the autopsy. It was VIOXX, Mr. Lanier said, that caused a blood clot that produced the heart attack.
Jurors said they accepted Mr. Lanier’s argument in part because of testimony from Dr. Maria Araneta, the coroner who conducted Mr. Ernst’s autopsy. In a videotaped deposition played before the jury, Dr. Araneta said she believed that a blood clot killed Mr. Ernst, even though her autopsy report did not mention a clot.
Some jurors also said they were alienated by Ms. Lowry’s 90-minute-long cross-examination of Mrs. Ernst midway through the trial, asking questions the jurors found insensitive and irrelevant. They said they were also bothered by Ms. Lowry’s contention in her closing argument that Mrs. Ernst would be happy with a verdict for Merck, because it would reduce her professed sense of guilt for having suggested to her husband that he ask his doctor about VIOXX.
“That was wrong of them,” said Matthew Pallardy, a juror.
In its statement Friday, Merck said it might base its appeal on whether Judge Hardin had wrongly allowed irrelevant or scientifically flawed testimony.
“We believe that we have strong points to raise on appeal,” Kenneth C. Frazier, Merck’s general counsel, said in the statement. “There are other VIOXX cases coming to trial and we will vigorously defend them.”
Standing outside the Brazoria County Courthouse for a news conference after the verdict, Mr. Lanier said that he hoped to participate in the New Jersey case that goes to trial this fall and that he would be glad to try more cases if Merck will not settle.
“My message to Merck is: You want to go again?” he said. “We’re just getting warmed up.”
Copyright © 2004, by The New York Times Company. Adapted with permission.
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