Jury Finds Merck Liable in Vioxx Death of Triathlete (Wall St. Journal)

Choo-choo! Here comes the money train for athletes who used Vioxx over the last couple of years. Keep your receipts for that class-action suit that is soon to come!

- SD

Jury Finds Merck Liable in Vioxx Death of Triathlete

By GARY MCWILLIAMS
Staff Reporter of THE WALL STREET JOURNAL
August 19, 2005 3:43 p.m.

ANGLETON, Texas — Merck & Co. was found negligent in the death of a 59-year-old triathlete who used Vioxx, a prescription painkiller used by more than 20 million Americans before it was linked to heart attacks. The jury awarded awarded the man's widow $24 million in actual damages, plus $229 million in "exemplary," or punitive damages, for a total of about $253 million.

A jury of seven men and five women ruled against Merck on each of three key questions. They found Merck failed to warn doctors of the Vioxx's danger, that the drug was improperly designed, and that Merck's negligence caused Robert Ernst's death.

The decision came midway through the second day of deliberations in this closely watched trial. The case is the first to go to trial of scores of lawsuits alleging injuries from Vioxx. The man's family erupted with joy shortly after the verdict was announced.

Mark Lanier, attorney for Carol Ernst, widow of Robert Ernst, slammed papers down and shouted "Yes!" when the judge read the punitive damages. Mr. Lanier told reporters, referring to the jury: "These people are good, solid people. They know right and they know wrong. It sends the message that the drug companies must tell us the good the bad and the ugly."

Merck said it plans to appeal. "We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death," said Jonathan Skidmore of Fulbright & Jaworski, a member of Merck's defense team, in a press release. (See Merck statement.)

The Six Questions Comprising the Judge's Charge to the Jury: • Was there a defect in the marketing of Vioxx at the time it left the possession of Merck & Co. that was a producing cause of the death of Bob Ernst? • Was there a design defect in Vioxx at the time it left the possession of Merck & Co. that was a producing cause of the death of Bob Ernst? • Did the negligence, if any, of Merck & Co. proximately cause the death of Bob Ernst? • What sum of money, if paid now in cash, would fairly and reasonably compensate Carol Ernst for her damages, if any, resulting from the death of Bob Ernst? • Do you find by clear and convincing evidence that the harm to Bob Ernst resulted from malice attributable to Merck & Co.? • What sum of money, if any, should be assessed against Merck & Co. and awarded to Carol Ernst as exemplary damages for the death of Bob Ernst? Read the full Charge of the Court.

The decision came midway through the second day of deliberations in this closely watched trial. The case is the first to go to trial of more than 4,000 lawsuits alleging injuries from Vioxx. Analysts have speculated Merck's liability could reach $18 billion.

Shares Slip

Merck shares were down 86 cents, or 2.8%, at $29.55 just after the verdict was read on Friday. The company's stock lost 27% of its value on a single day last year when the company acknowledged Vioxx increased the risk of heart attack and sudden cardiac death and pulled the drug from the market.

In Texas, punitive damages are capped at twice the amount of economic damages -- such as lost wages -- and up to $750,000 on top of non-economic damages, such as mental anguish and loss of companionship. But the non-economic damages have no limits in this case.

Merck pulled the drug from the market last year after a study showed it could double risk of heart attack or stroke if taken for 18 months or longer, but the company says no studies link Vioxx to arrhythmia, or irregular heartbeat.

Write to Gary McWilliams at gary.mcwilliams@wsj.com

(linked from the Wall St. Journal, Copyright, 2005 - All Rights Reserved)