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A jury in Angleton today returned a verdict awarding a total of $253.4 million in damages to the plaintiffs in the nation’s first civil Vioxx trial against drug maker Merck & Co. Inc. After deliberating for a day and a half, the jury found negligence on Merck’s part was a proximate cause in the death of Robert Ernst, a 59-year-old WalMart employee who died in 2001. The jury also found that a marketing defect in Vioxx and a design defect in the painkiller were both a producing cause in Ernst’s death. The jury awarded $24.4 million in actual damages and $229 million in punitives to Ernst’s widow, Carol, and his children, who filed Carol A. Ernst, et al. v. Merck & Co. Inc. in 2002 in 23rd District Judge Ben Hardin’s court. Following the verdict, the New Jersey-based Merck announced it would appeal. Merck said in a written statement it is examining several bases for appeal, including Hardin’s decision to allow “unqualified experts” to give opinion testimony at trial, to allow testimony “not based on a reliable scientific basis,” and to allow evidence “with no relevance to the issues of the case.” In the statement, defense attorney Jonathan Skidmore, a partner in Fulbright & Jaworski in Dallas, said, “We believe that the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst’s death.” After sitting through a grueling day of closing arguments on Aug. 17, the jury in Angleton began deliberations on Aug. 18. In impassioned arguments on Aug. 17, plaintiffs’ lawyer W. Mark Lanier told the jury, which includes five women and seven men, to hold Merck accountable for the death of Ernst, who died in 2001 after he had taken Merck drug Vioxx for about eight months to alleviate tendonitis in his hands. “You hold them accountable, you’ll be the first jury in America to say, ‘Time out Merck,’ ” Lanier said on Aug. 17. “ Do not let them off. Don’t say it’s OK.” Lanier’s final arguments to the jury capped off a trial that began on July 11 in 23rd District Judge Ben Hardin’s court in Angleton, which is about 40 miles south of Houston in Brazoria County. Lanier asked the jury to award Ernst’s family more than $40 million in actual damages and millions in punitive damages in Ernst v. Merck. “You put down something that demands the attention of Merck,” Lanier, of the Lanier Law Firm of Houston, told jurors. Lanier could not immediately be reached for comment following the verdict. In the First Amended Petition, Ernst’s family alleges Merck was negligent, because it failed to adequately warn Ernst about the risks associated with taking Vioxx, and the company engaged in a civil conspiracy to conceal the dangers of the drug from consumers. Merck has denied the allegations. Defense attorney Gerry Lowry, a partner in Fulbright in Houston, told the jury on Aug. 17 that Vioxx did not cause Ernst’s death. She pointed out that a coroner found Ernst died of a heart arrhythmia, and there was no scientific evidence at trial that Vioxx causes arrhythmia, an irregular heartbeat. “If he [Lanier] had any evidence Vioxx causes arrhythmia, this case would have been over three weeks ago,” Lowry told jurors. Jurors considered six questions in the charge Hardin read to them on Aug. 17, including whether there was a marketing defect in Vioxx that was a producing cause of the death of Ernst; whether there was a design defect; and whether the negligence of Merck proximately caused the death of Ernst. Jurors awarded actual damages to the plaintiffs, and they also found clear and convincing evidence that the harm to Ernst resulted from Merck’s malice, and awarded the punitive damages. Merck voluntarily withdrew Vioxx from the market in September 2004 after a study indicated an increased risk of strokes and heart attacks among people who took the drug continuously for longer than 18 months. Carol Ernst and her husband’s children filed the suit in 2002. During closing arguments, as he spoke to jurors and about 200 spectators in the packed courtroom, Lanier said Merck engaged in a decade of denial and deception, from about 1995 to 2005, in connection with Vioxx. He said it rushed the drug to market in 1999 because it would make money for the company. “The decisions were made on finance, not safety,” Lanier said. “The bottom line is, day after day, long-term use of Vioxx can kill you.” Also during closing arguments, Lowry and defense attorney David Kiernan, a partner in Williams & Connolly in Washington, D.C., who each delivered closing arguments for Merck, said the drug company acted responsibly. Kiernan said Merck studied the drug extensively from 1991 to 2004. “Merck is not an evil company. . . . It’s a company that conducted itself responsibly,” Lowry said. “The story of Mr. Ernst can be told without Vioxx — or Merck.” Lowry told the jurors to use common sense when deciding the case.

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