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The Honolulu Advertiser
Posted on: Saturday, August 20, 2005

Jury believed tests of drug were inadequate

By KRISTEN HAYS
Associated Press

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ANGLETON, Texas — Jurors who found Merck & Co. liable yesterday for the death of a Texas man said they expected pharmaceutical companies to get the message from their $253.4 million verdict that consumers need safe drugs.

"They needed to be held accountable for putting a drug out there that shouldn't be out there," said Stacy Smith, a 21-year-old childcare provider who stood with the majority in the 10-2 vote in favor of the man's widow, Carol Ernst.

"I want them to listen," said Marsha Robbins, a 53-year-old homemaker who was the presiding juror and the oldest of the panel.

One of the two dissenters, 46-year-old chemical company technician James Friudenberg, said he never wavered from his belief that neither Merck nor Vioxx was responsible for Robert Ernst's death. He sided with Merck's case that clogged arteries, not the drug, killed Ernst.

"I couldn't go with the probabilities," he said, referring to Carol Ernst's contention that a Vioxx-induced heart attack caused her husband's death, but that he died too quickly for the heart to show damage.

The size of the verdict will be knocked down to a maximum of $26.1 million under Texas caps on punitive damages. But jurors didn't know that, and those who voted in the majority said they didn't accept Merck's oft-repeated argument on the drug's safety when it went on the market in 1999 — that no risks had appeared in 58 clinical trials involving 10,000 patients conducted before it won approval from the U.S. Food and Drug Administration.

Carol Ernst, whose 59-year-old husband died suddenly after taking the drug for eight months, alleged Merck knew years earlier that Vioxx could be dangerous, but downplayed those concerns in favor of aggressively marketing what grew into a $2.5 billion seller.

The majority of jurors agreed.

Sherry Linnett, a 43-year-old secretary, said she favored Ernst before deliberations began, and digging through mounds of documents failed to change her mind.

David Webb, a 20-year-old electrician and one of the two youngest jurors on the panel, said he went into deliberations supporting Ernst, "but I wanted to give the defendants a chance. We just really didn't find anything that helped them."

He said the majority of jurors believed Merck failed to adequately test the safety of Vioxx because many of the numerous clinical trials were small or involved patients taking the drug anywhere from one day to a few months. But Vioxx was marketed as a one-a-day pain reliever to be taken long term because it would treat, yet not cure.

"There were a lot of really small studies," Webb said. "That's what I looked at."