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Merck to Appeal Loss of First Vioxx Suit

Jury awards widow $253 million, including $229 million in punitive damages

by William J. Storck
August 29, 2005 | A version of this story appeared in Volume 83, Issue 35


Merck & Co. will appeal its loss of the first lawsuit over its painkiller Vioxx, in which a Texas jury awarded the widow of Robert Ernst $253 million in damages. The suit, filed by Carol Ernst, charged that Vioxx had caused Ernst to die of a heart attack in 2001.

The suit was the first of more than 4,000 filed since the company pulled Vioxx from the market in September 2004, and legal experts say the success of this suit will cause many others to be filed.

The $253 million award consists of $24 million to Carol Ernst for mental anguish and loss of companionship and $229 million in punitive damages. This latter award will probably be reduced because it substantially exceeds legal limits to punitive damages in Texas.

On the day of the verdict, Merck's stock price fell 7.7% to $28.06 per share.

Merck does not believe that punitive damages should have been awarded at all. In a statement, Kenneth C. Frazier, the senior vice president and general counsel for the firm, says, "Merck acted responsibly, from researching Vioxx prior to approval with almost 10,000 patients, to monitoring the medicine while it was on the market, to voluntarily withdrawing the medicine when we did."

Frazier says: "We have strong points to raise on appeal and are hopeful that a higher court will correct the verdict. Even if the verdict were to be upheld, punitive damages under Texas law would be limited to approximately $2 million."

Among the points for appeal, according to Merck are the following: allowing opinion testimony to be given to the jury by unqualified experts; allowing opinion testimony that was not based on a reliable scientific basis as required by Texas law; allowing evidence with no relevance to the issues of the case, which unfairly prejudiced the jury; and allowing undisclosed surprise witness and expert testimony contrary to Texas law.



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