Widow of Vioxx Patient is Pressed by Merck Lawyers

posted on:
August 5, 2005

author:
Staff

 The plaintiffs rested their case Thursday in the first Vioxx lawsuit to reach trial after the widow of Robert Ernst told jurors that she believed her husband would be alive if he had not taken Vioxx. 

“For me to listen to the evidence that’s been presented just makes the pain that much more intense, because I can see so clearly that this didn’t have to happen to Bob, that this didn’t have to happen to the other people who it happened to,” the widow, Carol Ernst, said near the end of about four hours of testimony and cross-examination. “There was no reason for this to happen. They had information available.”

Mr. Ernst, who was 59, died in his sleep in May 2001 after taking Vioxx, a painkiller and arthritis drug, for eight months. His family is suing Merck, Vioxx’s manufacturer, in state court in Brazoria County, Tex., claiming that Vioxx was responsible for his death.

Ms. Ernst, 60, said she sometimes blamed herself for Mr. Ernst’s death because she encouraged him to ask his doctor about Vioxx after seeing an advertisement. Since Mr. Ernst’s death, she has been deeply depressed and now takes two prescription antidepressants, she said under direct examination by W. Mark Lanier, her lawyer.

“The bubble, the joy, the everything has just been left out of me,” she said. She has written a poem about a pit of despair she feels over Mr. Ernst’s death, she said.

“Sometimes I can get close to the pit and take a peek,” she said. “I’m afraid if I ever really looked into the pit and acknowledged what I’ve lost, that emotionally it would destroy what’s left of me.”

The Ernsts were married for only 11 months, although they had been dating and considered themselves in love for about three years before they married, Ms. Ernst said.

Ms. Ernst occasionally appeared tired during her testimony but remained composed throughout her time on the stand, which included a long cross-examination by Gerry Lowry, a lawyer for Merck. The jury of seven men and five women appeared to pay close attention to Ms. Ernst throughout her testimony, although several jurors seemed frustrated by Ms. Lowry’s questions, sitting with arms crossed and frowning at the defense table.

Legal experts say that cross-examining a plaintiff who has lost a spouse carries high risks, because jurors may become more sympathetic to the plaintiff and angry at the defense. Lawyers generally say that such cross-examinations should be short, so that jurors do not perceive that the defense is badgering the witness.

But Ms. Lowry cross-examined Ms. Ernst for about 90 minutes, asking questions about jobs Ms. Ernst had held decades before she met Mr. Ernst and whether Mr. Ernst was actually a certified public accountant and other points whose relevance to the lawsuit was not immediately apparent.

Occasionally, Ms. Lowry sounded sarcastic, as when she questioned Ms. Ernst about the fact that Mr. Ernst had not worked very much in the two years before he died, although he was working at Wal-Mart as a produce manager at the time of his death. On Wednesday a witness for the plaintiffs said he thought Mr. Ernst had been taking “a sabbatical.”

“Do you recall Mr. Ernst taking any kind of sabbatical from working?” Ms. Lowry asked, emphasizing the word sabbatical.

“He felt like he needed a break,” Ms. Ernst responded. Ms. Lowry then asked whether she and Mr. Ernst could have lived on his Wal-Mart earnings alone.

“Yes,” Ms. Ernst said. “I had lived on far less than that as a single mom.”

Later, Ms. Lowry disputed Ms. Ernst’s characterization of the weather on May 6, 2001, the day that Mr. Ernst died. “You’re not really contending it was cool that day, Ms. Ernst?” Ms. Lowry said. “You’re going to dispute that you said it was warm?”

When Ms. Lowry tried to inquire about Mr. Ernst’s relationship with his children from an earlier marriage, Mr. Lanier, the plaintiff’s lawyer, quickly objected. After excusing the jury, Judge Ben Hardin, who is overseeing the case, said the questions were irrelevant.

But at the end of her cross-examination, when she questioned Ms. Ernst about her decision to visit a grief counselor, Ms. Lowry did appear to score a point.

Ms. Ernst acknowledged that she had not visited the counselor until nine months after Mr. Ernst’s death, just after her mother died. Ms. Ernst said she waited so long to consult a counselor because she believed she could put her grief behind her on her own.

But Ms. Lowry pressed Ms. Ernst to acknowledge that she had contacted a lawyer about a possible lawsuit against Merck much sooner – about three months after her husband’s death.

Jonathan Skidmore, a lawyer for Merck, said he could not comment on Ms. Lowry’s approach to the cross-examination or the company’s trial strategy. Ms. Ernst was the final witness for the plaintiffs, who presented 14 days of testimony, including several days from Dr. Nancy Santanello, a Merck scientist.

After the plaintiffs rested, lawyers for Merck opened their case by calling Dr. Alan S. Nies, a retired senior scientist at Merck who was in charge of Vioxx’s development program. His testimony is to continue on Friday.

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