Appeals courts overturn two verdicts, judgment on award payment in Vioxx lawsuits

May 30 2008

State appeals courts in New Jersey and Texas on Thursday reversed two jury verdicts and a judgment on payment of legal fees in lawsuits related to the COX-2 inhibitor Vioxx that would have required Merck to pay about $37 million, Bloomberg/Washington Post reports (Van Voris/Voreacos, Bloomberg/Washington Post, 5/30).

In the New Jersey lawsuit, the state Superior Court Appellate Division reversed part of a 2006 jury verdict that would have awarded $9 million in punitive damages to plaintiff John McDarby, who experienced a heart attack after he took Vioxx for four years (Todd, Newark Star-Ledger, 5/30). The court ruled that the plaintiffs did not prove that Merck violated state consumer fraud laws (Berenson, New York Times, 5/30). The court also reversed a judgment that awarded $2.27 million in legal fees to attorneys for McDarby and a second plaintiff, Thomas Cona, who experienced a heart attack after he took Vioxx for 22 months (Bloomberg/Washington Post, 5/30). However, the court upheld part of the jury verdict that awarded $4.5 million in compensatory damages to the estate of McDarby, who died last year (Gold, AP/Philadelphia Inquirer, 5/30).

In the Texas lawsuit, the state 14th Court of Appeals reversed a 2005 jury verdict that would have required Merck to pay $26.1 million in damages to plaintiff Carol Ernst, whose husband Robert died of arrhythmia after he took Vioxx for eight months. A lower court previously reduced the jury verdict from $253 million to $26.1 million because of a state cap on damages (Flood, Houston Chronicle, 5/30). The appeals court ruled that the plaintiffs had not provided adequate evidence to prove that Vioxx caused the blood clot that led to the death of Robert Ernst (AP/Philadelphia Inquirer, 5/30).

Reaction

In response to the decisions, Bruce Kuhlik, general counsel for Merck, in a statement said, "We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death," adding, "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 attorney's fees previously awarded to plaintiffs at trial." Kuhlik said that Merck plans to appeal the decision to uphold the compensatory damages award in the New Jersey lawsuit (Bloomberg/Washington Post, 5/30).

Attorney Mark Lanier, who represents Carol Ernst, said, "It's pretty rare for an appellate court to take the place of the jury and the trial judge like this," adding, "Appellate courts in Texas have a reputation of standing up for corporate executives over and against widows and orphans. I'm sure the champagne corks are popping in New Jersey at Merck." He said that he would appeal the decision, possibly to the U.S. Supreme Court (Houston Chronicle, 5/30).

Attorney Ellen Relkin, who represents McDarby, praised the "robust affirmance" of the compensatory damages award by the New Jersey court. However, she said that she might appeal the decision to reverse the punitive damages award.

The new rulings give Merck a total of 11 victories and three losses amongst trials that reached verdicts. Retrials are pending in a few cases (Gold, AP/Los Angeles Times, 5/30). According to the New York Times, the "major court victories" for Merck move lawsuits related to Vioxx "closer to conclusion" and highlight the "increasing difficulty" for plaintiff attorneys in "winning lawsuits against big drug companies" (New York Times, 5/30). Earlier this month, Merck on agreed to a $58 million settlement with 29 states and the District of Columbia to end investigations over allegations that it downplayed cardiovascular risks caused by Vioxx in direct-to-consumer advertisements dating back to 1999 (Kaiser Daily Health Policy Report, 5/21).