For the first time, a jury has found Merck & Co. Inc. liable for a death in connection with the short-term use of the formerly popular painkiller Vioxx.

On April 21, a jury in Rio Grande City awarded $32 million to the family of a 71-year-old man who suffered a fatal heart attack in 2001 after taking Vioxx for about a month, says Joe Escobedo Jr., one of the attorneys representing Garza’s family. In its 10-2 verdict, the jury found Merck grossly negligent in the death of Leonel Garza Sr.

“This is the first case where a jury found that short-term use of Vioxx could cause a heart attack,” says Escobedo, a partner in Hockema, Tippit & Escobedo in McAllen.

The Garza family filed the suit March 10, 2003. “This was filed before anybody knew about the dangers of Vioxx,” Escobedo says.

Merck withdrew Vioxx from the market in September 2004, after a study showed the drug could be linked to the increased risk of cardiovascular problems if it was taken for more than 18 months.

The U.S. Food and Drug Administration has never stated that it saw any evidence linking short-term use of Vioxx to an increased risk of heart attack, Merck says in a statement posted on its Web site.

“We think the 18-months argument is science fiction,” says Escobedo.

The 10 man, two woman jury in Garza , et al. v. Evans, et al. deliberated about eight hours over two days before returning its verdict. Judge Alex W. Gabert of the 229th District Court, who presides over the trial, isn’t expected to enter a judgment in Garza for several weeks.

Merck is the only remaining defendant in the suit. The plaintiffs non-suited two McAllen physicians who allegedly gave Garza the Vioxx.

The jury’s award includes $25 million in punitive damages against Merck. The Garza family alleged in its second amended petition that Merck was grossly negligent, in that it failed to adequately warn consumers that Vioxx could cause serious cardiovascular side effects.

Travis Sales, one of Merck’s attorneys and a partner in Baker Botts in Houston, says punitive damages are limited to $750,000 under Texas law. Texas Civil Practice & Remedies Code 41.008(b)(1) limits punitive damages to twice the amount of economic damages plus an amount equal to the non-economic damages found by the jury, not to exceed $750,000.

During the trial, Gabert denied the plaintiffs’ motion to lift the cap on punitive damages.

Merck, which is headquartered in Whitehouse Station, N.J., will appeal the award of compensatory and punitive damages, Sales says. A primary point on appeal, he says, is that the evidence in Garza doesn’t meet the standard set by the Texas Supreme Court in 1997’s Merrell Dow Pharmaceuticals v. Havner, which requires scientifically reliable evidence to support a verdict.

“There is no scientific evidence presented for this short-term use to connect Vioxx to [Garza’s] heart attack,” Sales says.

To prove general causation under Havner, the plaintiffs must introduce into evidence at least two statistically significant studies showing that the use of Vioxx at the same dose and duration that Garza took the medication more than doubled the risk of a heart attack.

“Plaintiffs have failed to introduce evidence of any study that meets that requirement, let alone the two that are required under Texas law,” Merck argued in its motion for directed verdict submitted to Gabert.

Merck further argued in its motion that the plaintiffs failed to rule out other plausible causes of Garza’s heart attack, including the fact he suffered from severe cardiovascular disease for years before he ever took Vioxx.

In a footnote to its motion, Merck argued that Garza took, at most, 25 tablets of Vioxx before he died on April 21, 2001.

Another jury recently decided for the defense in a suit involving short-term use of Vioxx. In February, a jury in the U.S. District Court for the Eastern District of Louisiana rejected a claim in Plunkett v. Merck & Co. that Vioxx caused the 2001 death of Florida resident Richard “Dicky” Irvin Jr. The jury’s decision came in the second trial of Plunkett.

U.S. District Judge Eldon Fallon of New Orleans sitting in a federal court in Houston because Hurricane Katrina wreaked havoc with his Louisiana courtroom presided over the first trial in Plunkett. Fallon declared a mistrial in December 2005 after the jury was unable to reach a verdict.

Andy Birchfield, one of the attorneys who represented widow Evelyn Irvin Plunkett, says the risk of heart attack existed with Vioxx regardless of whether an individual took the painkiller long term or short term. But he says Merck has done a good job of convincing the news media that an individual has to use Vioxx 18 months to be at risk.

“That’s not fact; it’s just Merck’s PR campaign,” says Birchfield, a partner in Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.

In August 2005, in the first Vioxx suit to go to trial, a 23rd District Court jury in Angleton awarded widow Carol Ernst $253.5 million in Ernst, et al. v. Merck & Co. Birchfield notes that Ernst’s husband, Bob, a 59-year-old Wal-Mart produce manager, used Vioxx for less than 18 months. In fact, Bob Ernst used the pain medication for only eight months before he died of heart problems. [See “Deconstructing Vioxx,” Texas Lawyer, Aug. 29, 2005, page 1.]

Sales says Merck’s defense team is disappointed in the Garza verdict but knew going into the trial that Starr County, located on the Texas-Mexico border, is a difficult jurisdiction for corporate defendants. The suit was even more difficult, he says, because the Garza family is well known in Rio Grande City.

Garza, a former auditor for Starr County, worked for 22 years in the courthouse where the suit was tried, Sales says.

Mauro Ruiz, another attorney representing the Garza family and an associate with Hockema, Tippit, says Merck did everything it could to keep a Starr County jury from deciding the case. Merck twice tried to remove the case to the U.S. District Court for the Southern District in McAllen and also had the case sent to the federal multidistrict litigation court in New Orleans, he says.

Fallon, the New Orleans judge who presides over the federal MDL for Vioxx cases, remanded the case to the 229th District Court for trial.

Garza is the sixth Vioxx trial nationwide and the second Texas case to end with a sizable verdict for the plaintiffs.

Trial in a Box

W. Mark Lanier, Carol Ernst’s attorney and a principal in the Lanier Law Firm in Houston, says he expects Judge Ben Hardin to reduce the Ernst verdict to $27.3 million next month because of the cap on punitive damages. The jury had awarded $229 million in punitive damages. Hardin has scheduled a May 1 hearing to enter the final judgment in that case, Lanier says.

Lanier also was co-counsel on McDarby v. Merck & Co., which ended with a $13.5 million verdict for plaintiff John McDarby, 77, who had a heart attack after taking Vioxx. That suit went to trial earlier this month in New Jersey Superior Court in Atlantic City. Lanier says he handled liability, general causation and punitive damage issues in McDarby and in Cona v. Merck & Co., another case tried at the same time. The New Jersey jury found that Merck failed to warn McDarby and Thomas Cona about the dangers of Vioxx. But the jury also found that the medication did not cause the 60-year-old Cona’s heart attack and awarded him $45, his cost of the medication.

So far, Merck has won three Vioxx suits. Those include the mistrial in Plunkett I and the jury verdict in Plunkett II and the November 2005 defense win in Humerston v. Merck in New Jersey Superior Court in Atlantic City.

Lanier predicts Merck’s luck will run out. “I truly think Merck is living in a house of
cards, and over time you’ll see Merck losing more and more,” he says.

But Sales says, “Merck continues to believe it has a very strong defense.”

Lanier says there is a new factor in Vioxx litigation. Lawyers representing plaintiffs in Vioxx suits can learn about Merck’s trial strategy, watch cross-examinations of the company’s witnesses and see all the exhibits by downloading McDarby v. Merck on the Court TV Web site, he says.

“It’s truly putting a trial in a box, and it’s going to make it harder and harder for Merck,” Lanier says.

Sales says the plaintiffs bar has been giving seminars and meeting to strategize about Vioxx litigation. The ability to download the McDarby trial is nothing different from what plaintiffs lawyers have been doing behind closed doors, he says.

Notes Sales, “I don’t think that changes the dynamics.”

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