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Merck Could Get Hit Even Harder In Next Vioxx Suits

August 22, 2005
Legal experts examining the outcome of last week’s $253.4 million judgment against Vioxx maker Merck say the company’s total liability for the now-withdrawn prescription pain killer could reach $18 billion. In many ways, they say, the first case was the hardest one for plaintiffs to prove.

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In the verdict, handed down August 19, a Texas jury held that Vioxx was responsible for the death of Robert Ernst, who died – not of a heart attack or stroke – but heart arrhythmia.

Lawyers for Ernst’s widow Carol were able to convince the jury that Vioxx was to blame for the 59-year-old’s death, even though the well-publicized health risk is for heart attack and stroke. In addition, the jury found that Merck had acted in “conscious indifference” in its marketing of the drug.

Jurors quoted by The Wall Street Journal said it took them less than an hour to dispense with claims that Vioxx was not responsible for Ernst's deaths. Jurors said that, more than medical details, they were outraged by what they saw as Merck's cover-up of the risks associated with Vioxx.

Already, there are over 4,000 pending lawsuits against Merck for deaths and injury linked to Vioxx. Legal experts says those who suffered heart attack or stroke should have an easier time making their case, even if the Ernst award ends up being reduced.

Next up is the case of Michael Humeston, a New Jersey postal worker who had been taking Vioxx for two months before suffering a heart attack in 2001. He survived, but his case argues he suffered debilitating permanent heart disease.

Attorneys in the Ernst case presented the jury with reams of documents, suggesting the company was aware of concerns about the safety of Vioxx but ignored them because the drug was so profitable. Legal experts say the Ernst case has provided other plaintiffs a blueprint for making their cases against the drug manufacturer.

Meanwhile, Merck may have problems outside the courtroom. In May a Congressional committee held hearings on Merck’s marketing practices, producing a number of documents, including written guidelines for "detailers," the sales representatives who visit doctors to promote drug company's products.

According to those documents, Merck's detailers were instructed to make eye contact with doctors while firmly shaking their hand. More significantly, when doctors asked about Vioxx' increasing the risk of heart attack and stroke, the detailers were instructed to give them a pamphlet written by Merck's marketing department.

The pamphlet claimed that Vioxx was eight times safer for heart patients than similar painkillers. It omitted Merck's only findings that Vioxx produced a fivefold increase in heart attack and stroke risk compared with naproxen, another popular pain killer.

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