Merck's VIOXX Ruling Overturned

WHITEHOUSE STATION, N.J., May 29, 2008 - "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. 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. We intend to seek further review of the portion of the award that remains standing after the New Jersey decision. We continue to believe Merck acted responsibly."

TRENTON, N.J. (AP) - A Texas appeals court on Wednesday overturned a multimillion-dollar verdict against Merck & Co. in one of the few trials it lost over its withdrawn painkiller Vioxx. A jury in Rio Grande City, Texas, in April 2006 awarded $32 million to thewidow of 71-year-old Leonel Garza, a short-term Vioxx user who died of a heartattack in 2001. That award -- $7 million for compensatory damages and $25 million for punitive damages -- later was cut to about $7.75 million under Texaslaw limiting damages.

On Wednesday, a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion. The judges wrote that Garza's family did not prove his brief use of Vioxx caused two blood clots that the family's attorneys argued triggered his heart attack. The judges also concluded the family did not provide sufficient evidence to rule out his long-standing heart disease as the cause of his fatal heart attack. Garza had a prior heart attack and heart bypass surgery, smoked for nearly 30 years and died of the second heart attack after taking Vioxx for less than a month. Merck lawyers had argued that heart attack was the end result of his 23 years of heart disease.
"There was simply no reliable evidence Vioxx caused Mr. Garza's heart attack," Travis Sales, one of the attorneys who represented Merck during the trial, said in an interview. David Hockema, one of the Garza family attorneys, said they had just read the opinion and had not decided on their next move. Possible next steps would be a motion for a rehearing before the same court of appeals or a petition to the Texas Supreme Court, he said. "I think the decision is clearly wrong and sets an impossible burden for the plaintiff to show the offending instrument (Vioxx) was the sole cause of their injury," Hockema said.

After the trial, a juror admitted previously borrowing more than $12,000 from Garza's widow, Felicia, an issue that Merck also raised in its appeal, Sales noted. However, that was not mentioned in the three-page appellate court decision.

Whitehouse Station, N.J.-based Merck pulled Vioxx from the market in September 2004 after research showed the painkiller doubled risk of heart attacks and strokes. That triggered an avalanche of lawsuits against Merck, which has a $4.85 billion settlement pending to end the bulk of the personal injury suits. The Garzas and others whose cases went to trial before the settlement agreement in November are not eligible to participate. Wednesday's ruling gives Merck 10 victories and four losses in the trials that reached verdicts, with retrials pending in a few cases.

Merck shares rose 66 cents, or 1.7 percent, to $39.83 in regular trading
Wednesday, and rose another 23 cents in after-hours trading. Shares have traded
between $36.80 and $61.62 over the past 52 weeks.