Merck found guilty of wrongful death
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Mercksuffered a serious blow Friday when it lost the first wrongful-death lawsuit against it over its painkiller Vioxx, opening the floodgates for additional lawsuits and raising the risk that liability will climb higher than estimates that reach $18 billion. A Texas jury Friday awarded $253.5 million from the drug maker to the widow of Robert Ernst, who died in 2001 after taking the painkiller and arthritis medicine Vioxx. The company plans to appeal the verdict and has vowed to fight the more than 4,200 state and federal Vioxx-related lawsuits pending across the country. Jurors rejected Merck’s argument that Ernst, 59, died of clogged arteries rather than a Vioxx-induced heart attack that led to his fatal arrhythmia. The loss is especially damaging because Merck initially had been expected to win what was considered a weak case because no studies have linked Vioxx to arrhythmia. And the next two cases Merck faces appear somewhat stronger, according to experts. “If they can’t win the weak ones, what does that say about the strong ones?” asked Anthony Sebok, a professor at Brooklyn Law School. Unlike many other pending lawsuits involving obvious heart attacks, the Ernst case centered on an autopsy that attributed his death to an arrhythmia secondary to clogged arteries. That autopsy - and the coroner who performed it - proved critical to the trial’s outcome. Merck pointed to the autopsy as proof that Vioxx could not have caused the death of Ernst, who ran marathons and taught aerobics. However, Dr. Maria Araneta, the pathologist who performed Ernst’s autopsy, testified for Ernst that a blood clot that she couldn’t find probably caused a heart attack that triggered Ernst’s arrhythmia. She also said the heart attack killed Ernst too quickly for his heart to show damage. While Araneta couldn’t say definitively that he had a blood clot and heart attack, she insisted they were the likely culprits in triggering an arrhythmia, which she said wouldn’t happen on its own. Araneta didn’t blame Vioxx, however, noting she knew little about the drug when she performed Ernst’s autopsy. But three plaintiff’s experts in arrhythmia, cardiology and public health did. Merck’s experts agreed with Araneta’s conclusions in the autopsy, but not her undocumented theory of what triggered the arrhythmia. Lawyers for the plaintiff contend that Merck allowed Vioxx to go to market despite knowledge that the drug posed a heart attack risk. Mark Robinson, a Newport Beach attorney with about 1,000 clients planning to sue Merck, said, “I just think that the documents were so compelling that the jury did what it was supposed to do. The documents in this case are worse than the Pinto case. … The tobacco case was worse, (but) this is the second-most damning case (in the country).” Big tobacco companies had to pay billions to states and individuals in the ’90s for knowingly selling a product they knew to be dangerous. Ford was charged with knowing that Pinto gasoline tanks in the ’70s were prone to catch fire during rear-end collisions but failing to warn the public or fix the problem out of concern for profits. Robinson said that typically a company facing mass litigation seeks to try a few cases in the beginning, then will settle the bulk of the other cases if it keeps losing. “At some point, they have to look to resolve these cases,” Robinson said. Analyst Jason Napodano of Zacks Investment Research said anyone taking Vioxx with any type of a cardiovascular problem will feel emboldened to file a lawsuit after the Texas verdict. So far, more than 4,000 cases have been filed, some presumably stronger than the Angleton case. Merck has set aside $675 million to fight them. “A Merck loss means that the number of cases against them increases tenfold,” predicted Napodano. If this verdict marks the beginning of a losing streak, Merck may back away from its pledge to try each case individually and not settle any, some experts said. But they said a rash of verdicts would be necessary before the company changes its strategy. “Merck says there will be no surrender. But you have to wonder if that will be true,” said Sebok. The plaintiff Carol Ernst called the verdict a “wake-up call” for pharmaceutical companies. “This has been a long road for me,” she told reporters later. “But I felt strongly that this was the road I needed to take so other families wouldn’t suffer the same pain I felt at the time.” |