- The Washington Times - Friday, August 19, 2005

ANGLETON, Texas — A jury yesterday found pharmaceutical giant Merck & Co. liable for the death of a man who took the once-popular painkiller Vioxx, awarding his widow $253.4 million in damages in the first of thousands of lawsuits pending across the country.

A seven-man, five-woman jury deliberated for 10 hours over two days before returning the verdict in a 10-2 vote.

Plaintiff Carol Ernst began to cry when the verdict was read while her attorneys jumped up and shouted, “Amen.”

Jurors in the semirural county rejected Merck’s argument that Robert Ernst, 59, died of clogged arteries rather than a Vioxx-induced heart attack that led to his fatal arrhythmia.

The case drew national attention from pharmaceutical companies, lawyers, consumers, stock analysts and arbitrageurs 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.

After the verdict, Merck shares dropped $2.35, or 7.7 percent, to close at $28.06 on the New York Stock Exchange, approaching the 52-week low of $25.60.

“I’m relieved,” Mrs. Ernst told reporters later. “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.

Merck lawyer Jonathan Skidmore said the appeal would center on what he believes was “unreliable scientific evidence.”

“It’ll be based on the fact that we believe unqualified expert testimony was allowed in the case; there were expert opinions that weren’t grounded in science, the type that are required in the state of Texas,” he said. “We don’t believe [plaintiffs] met their burden of proof.”

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 include mental anguish and loss of companionship.

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

“This case did not call for punitive damages,” Mr. Skidmore said. “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.”

Juror Derrick Chizer, 43, who voted for Mrs. Ernst, said the 10 like-minded jurors believed a heart attack triggered the Texas man’s fatal arrhythmia.

“It could have been prevented,” he said. “That is the message [to pharmaceutical companies]. Respect us.”

But juror James Fruindenberg, one of the two who voted for Merck, said he “couldn’t go with the probabilities” of what caused Robert Ernst’s death.

If the first wave of verdicts go against Merck, experts predict it will open the floodgates for more lawsuits and could force the drug company to settle cases. Analysts have speculated Merck’s liability could reach $18 billion.

If Merck prevails in future cases, however, lawsuits could fade away, easing some of the pressure on its stock.

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

Merck pulled Vioxx, a $2.5 billion seller, from the market in September 2004 when a long-term study showed it could double risk of heart attack or stroke if taken for 18 months or longer.

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