First Texas Vioxx Trial Results in Jury Verdict for Plaintiff

Post-Verdict Remarks By Jurors Provide Insight About $253 Million Award in Ernst v. Merck Case

In August 2005, Merck & Co. lost its first Vioxx trial in a Texas state court after the jury found that its painkiller Vioxx was responsible for the death of Robert Ernst, and awarded his widow a verdict of $253 million. Although Merck maintained throughout the trial that it did not know of Vioxx's potential for heart risk until just before it pulled the drug from the market in September 2004, the jury was apparently suspicious. One juror who was interviewed after the verdict said, "(The evidence) told me they knew cardiovascular events were possible on this drug, but they failed to tell us about it."

This wrongful death Vioxx lawsuit concerned Robert Ernst, who used Vioxx for somewhere between six and eight month before his death in 2001 at age 59. The death certificate for Mr. Ernst stated that he died of an arrhythmia, or irregular heartbeat. At the trial, attorneys for his widow, Carol Ernst, argued that Mr. Ernst actually died from a Vioxx-related heart attack.

The Ernst case was tried in Brazoria County, Texas, where a jury of seven men and five women heard competing evidence during the five-week trial about whether Vioxx caused Mr. Ernst's death. In the end, by a 10 to 2 vote, the jurors found Merck liable for his death. In turn, the jurors awarded the plaintiff $24 million in actual, or compensatory, damages, and then another $229 million in punitive damages, for a total of around $253 million.

Under Texas law, however, the amount of punitive damages a plaintiff can receive is limited by operation of a statutory "cap". As such, the punitive damages aspect of the Ernst case jury verdict will be reduced by the judge to $1.6 million, meaning the final overall jury award will be about $26.1 million -- presuming that the Ernst verdict is not modified or overturned by Texas appellate courts.

According to post-verdict remarks made by some jurors to the members of the press, it is apparent that the Ernst jury believed it was sending a message to Merck by means of its massive verdict.

• "Stop doing the minimum to put a drug on the market," juror Derrick Chizer said. "Go out there and do your very best. ... Merck makes a lot of medicines. They're staking our lives. Be responsible." [The Dallas Morning News, 8/20/05]

• Juror Derrick Chizer, who voted for Ernst, said the majority of jurors believed a heart attack triggered his fatal arrhythmia, or irregular heartbeat. "It could have been prevented," he said. "That is the message (to pharmaceutical companies). Respect us." [The Associated Press, 8/20/05]

• (Juror Derrick) Chizer said the message jurors wanted to send to Merck was for the company to take their responsibility seriously. "Every life counts to us. They should be responsible. If they care, then show it," said Chizer, 43, of Pearland, who works for the Social Security Administration. [The Houston Chronicle, 8/20/05]

• Juror Lorraine Blas: “We wanted to make a statement. We wanted to let all the companies know that they can't do this. It's not right. You can't hide information. You have to give all the information.” [The Early Show, CBS News Transcripts, 8/20/05]

• "They needed to be held accountable for putting a drug out there that shouldn't be out there," said Stacy Smith, a 21-year-old child care provider who stood with the majority in the 10-2 vote in favor of the man's widow, Carol Ernst. "I want them to listen," said Marsha Robbins, a 53-year-old homemaker who was the presiding juror and the oldest of the panel. … David Webb, a 20-year-old electrician and one of the two youngest jurors on the panel, said he went into deliberations supporting Ernst, "but I wanted to give the defendants a chance. We just really didn't find anything that helped them." [The Associated Press, 8/19/05]

From other juror remarks published in news articles, it is clear that the Ernst jury took into consideration Merck's decision to market Vioxx despite knowing about the cardiovascular problems associated with their drug.

• One of the jurors, 21-year-old Stacy Smith, said she was shocked at evidence that showed the company knew the dangers of Vioxx long before it withdrew the drug. "They knew, and they still put it out anyway," she said. [Sunday Express (U.K.), 8/21/05]

• Several jurors said that company documents showed Merck seemed to care more about profits from the drug than the public's welfare. Stacy Smith, 21, said she was swayed by documents written by Merck executives. "They knew," she said, "and they still put (Vioxx) out."… Juror Lorraine Blas, 41, said she reviewed several documents in the jury room and found a particularly damaging Merck e-mail on cardiovascular events and testing dating back years. "I felt Merck knew something was going on as early as 1997," she said. Juror Derrick Chizer, a Social Security service representative, said he was irritated that Merck failed to send any executives who were responsible for bringing Vioxx to market to the trial. "Not one bigwig from Merck came down. Not one of them took the time," Chizer said. "One death in my life would make a difference. Why wouldn't it make a difference to them?" [Los Angeles Times, 8/20/05]

• Juror Lorraine Blas: "The evidence there – after reviewing all the evidence in the jury room, I decided from looking at the paperwork they knew the problems this medication was causing and they hid it from us. Rather than telling us the good and the bad, they only told us the good." [The Early Show, CBS News Transcripts, 8/20/05]

• "Merck did not let us know the full problems of the drug," juror Rhonda Wade said. "I was shocked." [The Dallas Morning News, 8/20/05]

• "This case certainly opened my eyes," said juror Rhonda Wade, a 41-year-old mother of four from nearby Clute, Texas. "They ignored an FDA warning letter about their marketing and they didn't give [regulators] all of the information."... "I will probably never take another pill without totally investigating it, questioning my doctor and pharmacists and reading all the information I can," Wade said. [Chicago Tribune, 8/20/05]

• Juror Stacy Smith: "The issue, to me, was, did Merck know before they put the drug on the market, and when they did, why didn't they do something about it immediately?" [World News Tonight, ABC News Transcripts, 8/19/05]

• "Look at the evidence," said Marsha Robbins, the forewoman, when asked whether the award was excessive. "They knew they had a problem," she said of Merck, the maker of Vioxx. … One factor that swayed the jury, Ms. Blas said, was another look at Merck's labeling of Vioxx, even after the company began warning doctors that the drug could be linked to ‘cardiovascular events’ like heart attacks and strokes. "In the first label, it didn't jump out at you that C.V. events were happening," Ms. Blas said, referring to a cardio vascular event. "You had to dig three levels to see it." [The New York Times, 8/20/05]

Lastly, some of the juror quotes published soon after the verdict suggest how the Ernst jury determined that punitive damages were warranted, and how the jurors arrived at the $229 million punitive damages amount.

• Juror Rhonda Wade: "Our award was based on the fact that once they figured out they had no choice to make the (warning) label change, they chose to stall it in order to make as much as $229 million. And we don't want them to stall. We want them to tell us the truth, and be responsible. … Looking through their evidence, and time after time, you could see where they knew about the CV (cardiovascular) events and how important it was and they didn't do anything about it. That's what made up my mind." [Newsnight with Aaron Brown, CNN, 8/19/05]

• Lisa Stark, ABC News Reporter (Voice Over): "The case against Merck relied heavily on internal company documents including ones that seemed to show Merck knew about possible heart risks, even before Vioxx went on the market. Jurors were also told Merck delayed strengthening Vioxx's warning label. And that's how they decided on the amount of punitive damages." Juror David Webb: "$229 million was the amount of money that Merck would gain if they put off changing the label." [Good Morning America, ABC News Transcripts, 8/20/05]

• Carol Ernst was awarded $253.45 million Friday, including $229 million in punitive damages. "That was a number they kept saying over and over," juror Stacy Smith, a 21-year-old college student, said. "It was in our mind. When you're sitting there for five weeks and that number kept being repeated, the number stuck in our mind." [The Houston Chronicle, 8/20/05]

• Because of caps under state law, Hardin will have to reduce the amount of the punitive damages to $1.65 million, making the total $26.1 million. Juror Rhonda Wade, 41, of Clute, said those on the seven-man, five-woman jury were not aware of a cap on punitive damages. "We assumed that no matter what the number, it would be cut back,’ she said. ‘We wanted to get the message across." [The Houston Chronicle, 8/20/05]

• In interviews after the decision, jurors said they had made the large punitive award to send a message that drug makers must disclose the risks of their medicines. "Respect us, that's the message," said Derrick Chizer, a juror. "Respect us." [The New York Times, 8/20/05]

• "When you write that figure ($229 million), it means Merck is going to have to get responsible," said Rhonda Wade, 41, of Clute. "It's not the money," added Marsha Robbins, 53, of Freeport, who served as the presiding juror. "It's accountability." [The Houston Chronicle, 8/20/05]

Acknowledgement: Media quotes compiled and provided for use by the Association of Trial Lawyers of America (ATLA).

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