HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, May 29, 2008

Vioxx Verdicts - Score Two for Merck

The New York Times reports on the latest two Vioxx verdicts and they aren't good for plaintiffs.  The Associated Press states,

Appeals courts in New Jersey and Texas have scrapped verdicts against the drug maker Merck stemming from some of the earliest trials involving its once-popular painkiller Vioxx.

A Texas court reversed a $26 million verdict against Merck from the first trial. The court found no evidence that the patient, Robert Ernst, suffered a fatal heart problem from a blood clot caused by Vioxx. He had been taking the now-withdrawn drug for eight months before being stricken in May 2001. His widow had won a $253 million verdict against Merck in 2005, but caps on punitive damages in Texas later cut that to about $26 million.

Also Thursday, a New Jersey appeals court voided $9 million of the $13.9 million awarded to John McDarby in 2006 by a jury in Atlantic City.  The panel found that New Jersey’s Product Liability Act was pre-empted by the federal Food, Drug and Cosmetic Act. Mr. McDarby survived his 2004 heart attack.

In a statement, Merck’s general counsel, Bruce Kuhlik, said the company was gratified that the Texas 14th Court of Appeals found Vioxx did not cause Mr. Ernst’s death.  “In addition, the New Jersey court correctly reversed the awards of punitive damages and consumer fraud,” Mr. Kuhlik said. “We intend to seek further review of the portion of the award that remains standing after the New Jersey decision. We continue to believe Merck acted responsibly.”

Mr. McDarby’s lawyer, Ellen Relkin, said that while they were delighted with the affirmation of the $4.5 million compensatory part of the verdict, they would consider appealing the reversal of the $9 million in punitive damages.  Ms. Relkin said that “the most important legal finding” from the case is that court found that a drug maker could be found liable for contributory liability even in the case of a person with “underlying cardiac risk factors, such as diabetes, elevated cholesterol and advanced age.”

The New Jersey ruling also upheld a verdict in favor of Merck in the case of Thomas Cona, who survived a heart attack in June 2003. His case was heard simultaneously in Atlantic City with McDarby’s case.  Mr. Cona’s lawyer, W. Mark Lanier, called the ruling “unfortunate,” but said the New Jersey panel’s 126-page decision was well-reasoned.  Mr. Lanier, who also represented Mr. Ernst, complained that the Texas appellate panel’s ruling failed to interpret the evidence in the light most favorable to the jury verdict. . . . .   Mr. Lanier said he would appeal to the Texas Supreme Court if the appellate panel declines to reconsider the ruling.

All three cases were excluded from the settlement Merck reached in November in which it agreed to pay $4.85 billion to end thousands of other Vioxx lawsuits.  Thursday’s rulings give Merck 11 victories and 3 losses stemming from the trials that reached verdicts, with the damages now reduced in one of those losses. Retrials are pending in a few cases. . . .

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