Jury to Get Case in Texas Vioxx Trial

ANGLETON, Texas – Merck & Co. (MRK) should have told doctors and consumers "the good, the bad and the ugly" about Vioxx (search) long before pulling it from the market last year, a plaintiff's attorney said Wednesday in closing arguments in the nation's first civil trial involving the once-popular painkiller.

Mark Lanier, who represents the widow of a Texas man who died in 2001, accused the New Jersey pharmaceutical company of practicing denial and deception for the last decade, minimizing safety concerns about Vioxx to reap billions in annual profits.

"We have a right to know," Lanier said of any potentially lethal side effects. "They ought to tell us the good, the bad and the ugly."

Merck lawyer Gerry Lowry urged jurors to consider what would happen to the 100-year-old company if it knowingly created deadly drugs.

"Would that be good business? Would that make sense?" she asked.

Merck lawyers were to present closing arguments to the seven-man, five-woman panel later Wednesday. The jury will then decide the outcome of the first case to go to trial among more than 4,200 state and federal lawsuits.

The trial, which began July 14, has drawn national attention from pharmaceutical companies, lawyers, consumers and stock analysts as the first test of what lies ahead for the drug maker. Analysts have speculated Merck's liability could reach $18 billion.

In the Texas case, Lanier hinted to jurors Wednesday that mental anguish and loss of companionship damages for the plaintiff, Carol Ernst, could reach $229 million or more.

He said Merck reaped that amount from selling Vioxx in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The Food and Drug Administration (search) had suggested such changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller naproxen, sold under the brand name Aleve.

In Texas, punitive damages are capped at twice the amount of economic damages — such as lost wages — and up to $750,000 on top of noneconomic damages, such as mental anguish and loss of companionship. But the noneconomic damages have no limits in this case.

"You decide what's OK, and the drug companies will listen," Lanier said. "Merck will listen."

Merck launched Vioxx with great fanfare in 1999 as a pain reliever that cut the risk of stomach bleeding by inhibiting a blood-thinning enzyme. Last year the company pulled what grew into a $2.5 billion seller from the market after a study showed it could double the risk of heart attack or stroke if taken for 18 months or longer.

Some 20 million people took Vioxx.

Carol Ernst alleges Vioxx triggered the death of her husband, Robert, 59, in his sleep. He took the drug for eight months to ease pain in his hands. She also alleges Merck ignored its company motto of putting patients first, instead putting profits before safety.

Robert Ernst, a Wal-Mart produce manager who ran marathons and taught aerobics classes, died in his sleep one month before their first wedding anniversary.

Merck counters that the company acted responsibly, disclosed research and believed Vioxx to be safe until the study last year prompted its withdrawal.

Merck has relied heavily on Ernst's autopsy report, which attributes his death to an arrhythmia secondary to clogged arteries. The company says no studies link Vioxx to arrhythmia, so the drug couldn't have caused his death.

Lanier pointed to Merck's own medical manual, which says arrhythmia occurs in 90 percent of heart attack patients. He also presented witnesses, including the pathologist who performed the autopsy, who said a heart attack more than likely caused the fatal arrhythmia, but he died too quickly for his heart to show damage.

Lowry, like Merck's expert witnesses, told jurors the autopsy report didn't note a heart attack because there was no evidence of one beyond theories put forth more than four years later.

"In order for the plaintiffs to win, they have to ask you in that jury room to see in your imagination something that is not in the evidence in this case," she said.

Lanier began his closing argument by explaining that a civil verdict can be reached if 10 or more jurors agree based on a preponderance of evidence, rather than the more strict requirement in criminal cases of unanimous agreement beyond a reasonable doubt.

"You can have 49 percent doubt and cast your vote where the 51 percent is," Lanier said.