W. Mark Lanier, the Houston plaintiffs lawyer who won a $234.4 million jury verdict in Angleton in the nation’s first Vioxx trial, isn’t mincing words: A May 29 Texas appeals court opinion reversing a judgment in that suit is “judicial activism for corporate America.”

Lanier says the 10-page 14th Court of Appeals opinion, written by Chief Justice Adele Hedges, is “cursory” and “seems to construe the evidence in favor of the defendant and leaves out all of the evidence that supports the verdict.” “I’m upset, and I’ll appeal it,” Lanier says.

In the opinion, the three-justice panel reversed the $26.1 million judgment in Carol Ernst v. Merck & Co. Inc. and rendered judgment that Carol Ernst, whose 59-year-old husband died in 2001 after taking Vioxx for about nine months, should take nothing. The judgment is smaller than the verdict because of statutory caps on punitive damages. T

he panel found the evidence to be legally insufficient on the issue of causation. “We find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infraction triggered by a blood clot. Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband’s death,” Hedges wrote for the unanimous panel, which also included Justices John Anderson and Jeff Brown.

Jonathan Skidmore, a partner in Fulbright & Jaworski in Dallas who was a part of Merck’s trial team in Ernst, says Merck and its lawyers are very pleased with the opinion reversing 23rd District Judge Ben Hardin’s judgment. The suit was tried in 2005 in Hardin’s court.

“From day one, we felt there was no reliable scientific evidence that showed Mr. Ernst died due to any role that Vioxx played,” Skidmore says. “We thought the issues were very clear.” Skidmore declines to respond directly to Lanier’s characterizations that the panel’s decision is judicial activism.

Lanier says Carol Ernst couldn’t stop crying when he told her on May 29 about the 14th Court’s opinion, and she told him she has lost faith in the judicial system.

Lanier, of the Lanier Law Firm, contrasts the Texas appeals court opinion with another on the same day: a 126-page opinion a New Jersey appeals court issued in another Vioxx suit. The New Jersey Appellate Division upheld the actual damages award portion of a $13.9 million judgment in John McDarby, et al. v Merck & Co. Inc. but reversed $9 million in punitive damages and attorneys’ fees on the ground the federal Food Drug and Cosmetic Act pre-empted the New Jersey Product Liability Act. John McDarby, who survived a 2004 heart attack at issue in his Vioxx suit, has since died.

In the same appeal, the New Jersey appeals court reversed a $2.15 million judgment that included actual damages, attorneys’ fees and costs in favor of Thomas Cona in Thomas Cona, et al. v. Merck & Co. Inc., which was tried in New Jersey with McDarby. Lanier represented Cona at trial.

Ellen Relkin, the lawyer for plaintiff John McDarby, says the upholding of the compensatory damages award is significant. “This is a big win,” says Relkin of New York’s Weitz & Luxenberg, noting that this is the first time an appeals court has ruled that federal statutes and rules do not pre-empt claims brought under a state products liability law for a Food & Drug Administration-approved drug that further research shows may have dangerous side effects.

The consolidated rulings, McDarby v. Merck & Co. and Cona v. Merck & Co., came in the cases of two men who started taking Vioxx for osteoarthritic pain before the FDA’s April 2002 approval of a revised label that limited Vioxx use to patients with a medical history of ischemic heart disease. Relkin says she will cross-appeal the New Jersey appeals court panel’s decision to overturn the award of punitive damages, fees and costs.

Sufficiency of Evidence

In its appeal in Ernst, Merck challenged the legal and factual sufficiency of the evidence used to support the jury’s findings on causation, strict liability, negligence, malice and damages. Merck also argued that the trial court erred in jury instructions and in admitting certain evidence.

In the opinion, the 14th Court panel only addressed the first issue of causation — whether Carol Ernst, who alleged her husband’s death was caused by a blood clot caused by Vioxx — presented evidence of a blood clot. In the opinion, the panel found no evidence that a blood clot triggered by Vioxx caused Ernst’s death.

David Hockema — the plaintiff’s lawyer in a different Vioxx judgment that was reversed in May by another Texas appeals court — says he’s surprised by the 14th Court’s opinion.

“If the 14th Court really doesn’t want to believe in the Seventh Amendment [guaranteeing a trial by jury] and they want to substitute their opinion for the jury, they probably should do it,” he says. “I guess they drank Merck’s Kool-Aid.”

In April 2006, a 229th District Court jury in Rio Grande City awarded Leonel Garza’s family $7 million in actual damages and $25 million in punitives after finding that marketing and design defects in Vioxx caused the 71-year-old’s death in 2001. Due to statutory caps on damages, the judgment on appeal totaled $7.75 million. [ See “Garza Marks First Appellate Reversal for Vioxx Plaintiff,” Texas Lawyer, May 19, 2008, page 4.] Merck appealed the judgment in Garza’s favor in Merck & Co. Inc. v. Garza, et al. On May 14, the 4th Court of Appeals in San Antonio reversed the $7.75 million judgment, holding that Garza’s pre-existing heart problems could not be ruled out as a cause of death.

Hockema, a partner in Hockema & Longoria in McAllen, says he filed a motion on May 29 asking the 4th Court for a rehearing.

Houston plaintiffs lawyer Tommy Fibich, a partner in Fibich Hampton & Leebron who has settled all of his 250 or so Vioxx suits, says the 14th Court opinion in Ernst is a reflection of Texas’ conservative courts.

“They look askance at every plaintiff’s verdict. . . . Mark Lanier knows the rules on causation, and he and I thought he had met those under the Texas rules,” Fibich says. “Our courts are conservative. It’s like they try to find a reason to reverse a case these days.” Fibich says it’s a sad day when appeals courts “substitute themselves for the judge who tried the case and the jury who heard the evidence determination.”

What’s Next?

Most of the Vioxx suits pending against Merck won’t go to trial. In November 2007, Merck announced it would pay $4.45 billion to settle most of its Vioxx docket. [ See “Plaintiffs Counsel Disagree Over Ethical Duties in Vioxx Settlement,” Texas Lawyer , Nov. 19, 2007, page 1.] Merck, based in Whitehouse Station, N.J., won more Vioxx trials than it lost. The company says that of the 18 plaintiffs whose cases went to trial against Merck, only three have outstanding product liability judgments against the company.

In a written statement on May 29, Bruce Kuhlik, Merck’s executive vice president and general counsel, says the pharmaceutical company is gratified the Texas appeals court found Vioxx did not cause Robert Ernst’s death and reversed the judgment against Merck. He also is happy with the results of the New Jersey litigation.

“Today’s decisions overturn almost $40 million of damages and attorneys fees previously awarded to plaintiffs at trial,” Kuhlik says. “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.”