Appeals courts overturn Vioxx verdicts

Chris Rizo May 29, 2008, 1:00pm

(Legal Newsline) - Merck & Co. Inc. notched two major legal victories Thursday, with appeals courts in Texas and New Jersey tossing verdicts against the drugmaker involving the painkiller Vioxx.

In Texas, the court reversed a $26 million verdict against the Whitehouse Station, N.J.-based pharmaceutical giant.

In that case, the court ruled that there was no evidence to support claims that Robert Ernst suffered a fatal heart problem from a blood clot triggered by the once-popular medication.

Ernst's widow had won a $253 million verdict against Merck in 2005, but Texas' punitive damage award caps reduced the award to $26.1 million.

The Fourteenth Court of Appeals, in its decision, said while "the epidemiological evidence supports the conclusion that Vioxx use at a certain dose and duration is associated with an increased risk of thrombotic cardiovascular events," there is no evidence to support a claim.

"Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband's death," Chief Justice Adele Hedges wrote.

Merck took Vioxx, a non steroidal anti inflammatory drug, off pharmacy shelves in September 2004, after an internal study showed that Vioxx doubles risk of heart attack or stroke.

In New Jersey, an appeals court rejected most of the $13.9 million awarded to John McDarby in 2006. McDarby suffered a heart attack in 2004, but recovered.

In its decision, the court ruled that the state's Product Liability Act was pre-empted by the federal Food Drug and Cosmetic Act.

The two cases were excluded from the settlement Merck reached in November in which it agreed to pay $4.85 billion to settle thousands of other Vioxx-related suits.

In a statement, Merck executive vice president and general counsel Bruce Kuhlik praised the rulings.

"We are gratified that the Texas appeals court correctly found that VIOXX did not cause Mr. Ernst's death and reversed the previous decision for the plaintiff in the first VIOXX case to go to trial," Kuhlik said.

"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," he added.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at

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