Wall Street Watches First Vioxx Trials Closely
In Wake of Texas Verdict, Liability Estimates Have Nearly Doubled
After only a day and a half of deliberation that ended August 19, 2005, a Texas jury awarded over $253 million in damages in the nation’s first Vioxx trial. Robert Ernst, a 59 year old marathon runner and aerobics instructor, had taken Vioxx for less than seven months prior to his death. His family’s attorneys claimed that Merck & Co. Inc. knew that patients faced increased risk of heart problems after taking the painkiller, yet did not disclose this information. The jury found Merck & Co. negligent and awarded Ernst’s family $24.4 million in actual damages and $229 million in punitive damages. The final award is expected to be reduced to $26 million to comply with Texas’ statutory cap on damage awards. Merck plans to appeal.
During the precedent-setting Carol A. Ernst, et al. v. Merck & Co. Inc. trial, Merck contended that their painkiller Vioxx had nothing to do with Mr. Ernst’s death. However, the Ernst’s family attorney presented internal Merck documents that established that the drug giant’s own scientists were worried about the increased risk of heart attacks long before Vioxx was withdrawn from the market in September 2004. A leaked March 2000 communication between Merck & Co. scientists and the company’s patent department sought to have Vioxx reformulated with an anti-clotting agent to reduce the risk of heart problems and strokes. In 2001, Merck filed an application with the U.S. Patent Office for a new version of Vioxx that combined it with a thromboxane inhibitor to cause blood clotting and constriction of blood vessels. Unfortunately, Merck eventually dropped the project and the patent.
Jurors in the Ernst trial stated afterwards that they wanted to send a message to Merck & Co. to “respect us”. In addition to an avalanche of product-liability claims, the multibillion-dollar company faces Congressional and Justice Department investigations. Analysts predict that the Ernst verdict will have significant repercussions not only for Merck, but for the entire drug industry.
Prior to the trial, analysts had forecast a Merck payout of between $100,000 and $300,000 for each lawsuit, for a potential total liability of $2 billion. With the Ernst verdict, product-liability claims in state and federal courts nationwide topped 5,000, half of which have been filed in Merck’s home state of New Jersey. Claims include allegations that Vioxx caused heart attacks, strokes, gastrointestinal bleeding, dangerous blood clots and kidney damage. Wall Street is now focused on upcoming trials which they say that Merck must win or the drug company may face billions of dollars in settlements. An August 22, 2005, Forbes.com article reported that the total liability for Merck could approach $50 billion. While Merck company officials have vacillated between strategies of aggressively fighting every case to settling some Vioxx cases, on the eve of the second trial the company is again declaring that they do not plan to enter any global settlements. Instead, they will focus on “defending these cases one at a time”.
Merck’s attorneys plan to more clearly explain medical evidence, their own damaging internal documents and the marketing of Vioxx than they did in the first Vioxx trial in the next trial. Jury selection for the second Vioxx trial began in Merck Co.‘s home state of New Jersey on September 12, 2005. The trial is underway. In the Frederick Humeston versus Merck & Co. litigation, a 60 year old postal worker and two-time Purple Heart winner suffered knee pain for years as the result of his Vietnam War wound. After taking the painkiller Vioxx for barely two months, he suffered a heart attack in 2001. Humeston survived his heart attack but suffered permanent heart damage, has constant fatigue, is worried about the increased risk of a second heart attack, takes multiple heart medicines and must comply with a restricted diet for the rest of his life. Humeston’s attorney said that his client was in excellent health prior to taking Vioxx; while Merck argues that the plaintiff’s age, weight, hypertension and inactivity caused his heart attack.
Citing pre-trial publicity associated with the Texas award, Merck had tried unsuccessfully to obtain a 45-day trial delay in the postal workers case by claiming that potential jurors would be biased because the Texas trial. The New Jersey Superior Court Judge who oversees the nearly 2,500 Vioxx product liability cases that have been filed in that state rejected Merck motions that included prohibiting some of the company’s marketing and promotional materials related to Vioxx, as well as information related to the plaintiff’s Vietnam record of valor. The judge has narrowed the trial issues to focus on the scientifically proven connections between Vioxx and heart attacks and strokes, and whether Merck was aware that Vioxx posed these health risks. Most recently, the judge ruled that cameras will be allowed in the courtroom.
Merck’s first trial in federal court was slated to begin Nov. 28 in New Orleans; however, due to Hurricane Katrina, the judge is now working out of Houston. In this case, plaintiff Richard Irvin had only taken Vioxx for about a month before he died of a heart attack at age 53.
The attorneys at the Ziff Law Firm are aware that before its recall, 20 million people took Vioxx for pain and arthritis relief. Instead of relief, many people’s health and lives have been jeopardized. Our attorneys are committed to protecting client rights and ensuring that the drug industry is held accountable for their products and how they are marketed to consumers. If you or a loved one has suffered astroke, heart attack, heart failure, chest pain, blood clots, serious bleeding or other health problems associated with Vioxx use, please contact our office today. We can discuss your situation and advise you on your right to compensation.
