After a disastrous start to Vioxx recall related litigation
for Merck, the company is vowing to appeal the verdict. In a courtroom in Brazoria County, Texas, the jury found Merck guilty of causing the death of a very healthy Robert Ernst. After it became public knowledge that Merck had known the dangers of Vioxx
even prior to its launch and it deliberately kept everyone in the dark about them, the jury awared a little over a quarter billion dollars to his widow Carol Ernst. (Related link: Vioxx recall news
"We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death," said Jonathan Skidmore of Fulbright & Jaworski, a member of Merck's defense team. "There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst's death, along with coronary atherosclerosis." This was the first product liability lawsuit to go on trial and it is definitely a great setback to Merck, which has denied any wrongdoing at all. It is estimated that up to 60,000 Americans may be dead after taking Vioxx. The jury saw a lot of internal Merck documents that clearly showed what Mark Lanier, the attorney for Ernst, was saying.
"This case did not call for punitive damages," added Skidmore. "Merck acted responsibly - from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients - to monitoring the medicine while it was on the market - to voluntarily withdrawing the medicine when it did."
Merck is examining various bases for appeal, including:
- Allowing opinion testimony to be given to the jury by unqualified experts and that it 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.
Merck is referring to the highly damaging testimony by Maria Araneta, the coroner. She was a surprise witness since Mark Lanier initially did not disclose her name. In its desperate attempt to block the jury from hearing Araneta's testimony that Bob Ernst must have died from a heart attack, Merck even appealed to an appelate court but lost.
We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," said Kenneth C. Frazier, senior vice president and general counsel of Merck. "Our appeal is about fundamental rights to a fair trial."
"There are other Vioxx cases coming to trial and we will vigorously defend them one by one over the coming years," Frazier added. He was clearly referring to over 100,000 or so plaintiffs that Merck will face in the United States alone in over 4,000 cases. While many analysts believe that Merck will eventually go bankrupt, its liabilities are clearly estimated to add up to tens of billions of dollars.Related articles: Vioxx victims in Oregon unable to sue MerckPain relief optionsCelebrex black box warningControversial start to Vioxx recallVioxx litigation expected to be easy