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DALLAS � Following the verdict that 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., Merck announced it would appeal. Merck said in a written statement it is examining several bases for appeal, including the judge’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.” In impassioned argument last Wednesday, plaintiffs’ lawyer W. Mark Lanier told the jury, which included five women and seven men, to hold Merck accountable for the death of Robert Ernst, who died in 2001 after he had taken the 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 Wednesday. “Do not let them off. Don’t say it’s OK.” In the First Amended Petition, Ernst’s family alleges that Merck was negligent, because it failed to adequately warn Ernst about the risks associated with taking Vioxx and that 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 & Jaworski in Houston, told the jury Wednesday 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. The jurors in Angleton, Tex., considered six questions in the charge Judge Ben Hardin read to them Wednesday, including whether a marketing defect in Vioxx 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; they also found clear and convincing evidence that the harm to Ernst resulted from Merck’s malice and awarded punitive damages. 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 Merck 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.” Brenda Sapino Jeffreys is a reporter with a Recorder affiliate based in Dallas, Texas.

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