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The Honolulu Advertiser
Posted on: Friday, August 19, 2005

Texas jury set to decide 1st Vioxx case

By Kristen Hays
Associated Press

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ANGLETON, Texas — Jurors who have spent more than a month hearing medical jargon-filled testimony began their deliberations yesterday in the nation's first Vioxx-related civil trial.

A little more than an hour into deliberations, the panel asked for copies of several documents admitted into evidence during the trial. Lawyers delivered to the jury those and all the other hundreds of documents admitted into evidence.

A Merck & Co. lawyer urged jurors at the end of the trial Wednesday to consider what would happen to the century-old company if it knowingly created deadly drugs.

"Would that be good business? Would that make sense?" asked Gerry Lowry before both sides handed the case to jurors after hearing several hours of closing arguments Wednesday.

But plaintiff's lawyer Mark Lanier said Merck should have told "the good, the bad and the ugly" about Vioxx long before pulling the drug from the market last year.

Lanier, who represents the widow of a Texas man who died in 2001, accused the New Jersey pharmaceutical company of practicing denial and deception for the past decade, minimizing safety concerns about Vioxx to reap billions of dollars in annual profits.

The first case to go to trial among more than 4,200 lawsuits has drawn national attention from pharmaceutical companies, lawyers, consumers and stock analysts as the first test of what lies ahead for the drug maker. Analysts have speculated Merck's liability could reach $18 billion. The trial began July 14.

In the Texas case, Lanier suggested to jurors Wednesday that mental anguish and loss of companionship damages for the plaintiff, Carol Ernst, could reach $229 million or more.

He said Merck reaped that amount from selling Vioxx in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The U.S. Food and Drug Administration had suggested such changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller naproxen, sold under the brand name Aleve.

In Texas, punitive damages are capped at twice the amount of economic damages — such as lost wages — and up to $750,000 on top of noneconomic damages, such as mental anguish and loss of companionship. But the noneconomic damages have no limits in this case.

Lanier asked for at least $40 million in noneconomic damages and implored the panel to "be the first jury in America to say 'Time out, Merck.' "