August 22, 2005

Merck plans to appeal the verdict returned by a Texas jury that found the company liable for the death of a man who took Merck's now-withdrawn arthritis pain drug Vioxx.

A jury in Brazoria County, Texas, awarded the man's widow more than $253 million in damages in the first liability trial involving Vioxx (rofecoxib), which has been linked to an increased risk of heart attacks and strokes. Merck faces thousands of other lawsuits and billions of dollars in damages over the drug, which was pulled from the market last fall.

Merck said it was disappointed in the jury's decision and confirmed it will appeal the verdict. The trial involved the 2001 death of 59-year-old Robert Ernst. "We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst's death," said Jonathan Skidmore, an attorney with Fulbright & Jaworski, and a member of Merck's defense team.

"There is no reliable scientific evidence that shows Vioxx causes cardiac arrhythmias, which an autopsy showed was the cause of Mr. Ernst's death, along with coronary atherosclerosis," Skidmore said.

The jury awarded Ernst's widow $24 million in actual damages, and $229 million in punitive damages, according to press reports.

Merck is examining various bases for an appeal, including the court's allowing of: opinion testimony to be given to the jury by unqualified experts; opinion testimony that was not based on a reliable scientific basis as required by Texas law; evidence with no relevance to the issues of the case, which unfairly prejudiced the jury; and undisclosed surprise witness and expert testimony contrary to Texas law.