Thursday, May 15, 2008

TRENTON, N.J. (AP) — A Texas appeals court yesterday overturned a multimillion-dollar verdict against Merck & Co. in one of the few trials that it lost over its withdrawn painkiller Vioxx.

A jury in Rio Grande City, Texas, in April 2006 awarded $32 million to the widow of 71-year-old Leonel Garza, a short-term Vioxx user who died of a heart attack in 2001. That award — $7 million for compensatory damages and $25 million for punitive damages — later was cut to about $7.75 million under Texas law limiting damages.

Yesterday, a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion.

The judges wrote that Mr. Garza’s family did not prove that his brief use of Vioxx caused two blood clots that the family’s attorneys argued triggered his heart attack. The judges also concluded that the family did not provide sufficient evidence to rule out his long-standing heart disease as the cause of his fatal heart attack.

Mr. Garza previously had a heart attack and heart bypass surgery, smoked for nearly 30 years and died of the second heart attack after taking Vioxx for less than a month.



Merck lawyers had argued that heart attack resulted from his 23 years of heart disease.

“There was simply no reliable evidence Vioxx caused Mr. Garza’s heart attack,” said Travis Sales, one of the attorneys who represented Merck during the trial.

David Hockema, one of the Garza family attorneys, said they had just read the opinion and had not decided on their next move. Possible next steps would be a motion for a rehearing before the same court of appeals or a petition to the Texas Supreme Court.

“I think the decision is clearly wrong and sets an impossible burden for the plaintiff to show the offending instrument [Vioxx] was the sole cause of their injury,” Mr. Hockema said.

After the trial, a juror admitted previously borrowing more than $12,000 from Mr. Garza’s widow, Felicia, an issue that Merck also raised in its appeal, Mr. Sales noted. However, that was not mentioned in the three-page appellate court decision.

The Whitehouse Station, N.J., drug maker pulled Vioxx from the market in September 2004 after research showed that the painkiller doubled risk of heart attacks and strokes. That triggered an avalanche of lawsuits against Merck, which has a $4.85 billion settlement pending to end the bulk of the personal injury suits.

The Garzas and others whose cases went to trial before the settlement agreement in November are not eligible to participate.

Yesterday’s ruling gives Merck 10 victories and four losses in the trials that reached verdicts, with retrials pending in a few cases.

Merck shares rose 66 cents, or 1.7 percent, to close at $39.83 on the New York Stock Exchange yesterday.

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