2 Verdicts Against Merck Reversed
Decisions Overturn $37 Million in Awards Over Vioxx

By Bob Van Voris and David Voreacos
Bloomberg News
Friday, May 30, 2008

Merck & Co. won reversals of a $26.1 million Vioxx verdict in Texas and a $9 million punitive damages award in New Jersey, in separate court rulings yesterday on trials over its withdrawn painkiller.

An appeals court in Houston ruled that Carol Ernst failed to prove that Vioxx caused her husband's fatal heart attack, saying her case was based on "nothing more than conjecture," throwing out the first verdict in a lawsuit over the drug. A New Jersey appeals court panel overturned a jury's punitive damages award to John McDarby, who blamed Vioxx for his heart attack. It upheld a $4.5 million compensatory damages award.

The panel also reversed a $2.27 million judgment awarding fees to lawyers for McDarby and another plaintiff, Thomas Cona, and tossed out claims that Merck violated the state's consumer fraud statute. Merck has agreed to pay $4.85 billion to settle lawsuits by thousands of plaintiffs who blamed their heart attacks and strokes on Vioxx.

"We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death," Bruce Kuhlik, general counsel for Merck, said in a statement. "In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud. Today's decisions overturn almost $40 million of damages and attorneys fees previously awarded to plaintiffs at trial."

Merck, based in Whitehouse Station, N.J., intends to appeal the compensatory damages in the McDarby case, Kuhlik said in the statement.

The third-biggest U.S. drugmaker pulled Vioxx from the market in 2004 after an independent study showed it increased the risk of heart attacks and strokes.

Ellen Relkin, a lawyer for McDarby, didn't immediately return a call seeking comment.

Mark Lanier, the lawyer for Ernst and Cona, said he is appealing both decisions. "The Texas court went off the deep end," Lanier said. "It's outrageous and it rewrites appellate law in Texas."

Lanier called the New Jersey ruling an "intellectually honest" one that he hopes will be overturned on appeal.

In August 2005, a jury in Angleton, Tex., awarded $253 million to the family of Robert Ernst, in the first Vioxx case to come to trial. The award, the biggest in a Vioxx case, was cut by the trial judge to $26.1 million under a state law limiting punitive damages.

A state court jury in Atlantic City awarded damages to McDarby and Cona in April 2006. McDarby, who was 77 at the time of the verdict, died before his widow, Irma, collected any money.

In a statement, Merck said it has won most of the 18 Vioxx suits that have gone to trial. Three of the plaintiffs have product-liability judgments outstanding against the company, it said.