Vioxx maker to pay $253M

Alberta plaintiffs buoyed by award to Texas widow

Saturday, August 20, 2005

Hundreds of Albertans who are suing the manufacturer of the painkiller Vioxx will be emboldened by a Texas court ruling Friday awarding $253 million US in damages relating to the drug, says a local lawyer.

"Those who have been reluctant to come forward may do so now," said Vaughn Marshall, the Calgary lawyer leading an Alberta class-action lawsuit against Merck Frosst Canada Ltd. on behalf of more than 200 clients.

Yet a Calgary participant in a different class-action lawsuit said the amount of the ruling is "ridiculous."

"It's Texas and everything's bigger in Texas, especially their judgments," said Jim Venables , a 49-year-old man who says he suffered a heart attack after taking Vioxx . "As far as I'm concerned, that's ridiculous."

Last September, Merck yanked its bestselling pain medication, once considered a "wonder drug" for arthritis sufferers, from store shelves when a study found it elevated heart attack and stroke risk in long-time users.

On Friday, a Texas jury found Merck & Co. liable in the death of Robert Ernst, 59, awarding his widow $253.4 million US.

In what is the first of thousands of lawsuits against Merck, the jury rejected the pharmaceutical giant's argument Ernst died from clogged arteries, not a heart attack brought on by Vioxx .

The judgment includes about $24 million for mental anguish and lost pay as well as $229 million in punitive damages.

When the verdict was read in the Angleton, Texas, courtroom, the man's widow, Carol Ernst, began to cry, while her lawyers jumped up and shouted, "Amen."

Merck lawyers immediately vowed to appeal, arguing unreliable scientific evidence was introduced at the trial. They also said the punitive damages were unwarranted.

"Merck acted responsibly -- from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients -- to monitoring the medicine while it was on the market -- to voluntarily withdrawing the medicine when it did," Merck lawyer Jonathan Skidmore said in a prepared statement.

Marshall said the Texas judgment bolsters the chance of success for several Canadian suits.

He added it will boost the likelihood of lawsuits north of the border receiving certification from the courts to go ahead, while encouraging other patients to join the action.

However, Marshall concedes that Canadian plaintiffs won't see anywhere near the $253 million US in damages awarded Friday.

The Marshall Attorneys lawyer is co-counsel on the case with Docken & Company.

At least one other local firm has launched an Alberta class action against Merck, and actions are pending in several other provinces.

Saskatchewan lawyer Tony Merchant, whose firm has filed class actions in seven provinces, said Friday's verdict suggests plaintiffs need to act quickly before Merck is bankrupted by further claims.

"In a case like this with claims filed throughout the world, sometimes the money runs out," he said.

Most observers, however, expect Merck to appeal the verdict as well as the amount of the judgment.

Venables , for one, believes Friday's judgment "means nothing" because of the likelihood of an appeal, although he claims the company is at fault.

The former school bus driver and instructor alleges he was only taking Vioxx for five months when he suffered his heart attack and lost most of his cardiac function.

Now he says he is permanently disabled and can't work.

"I live in constant fear that my heart is going to stop," says Venables , who is part of a national lawsuit led by the firm Rochon Genova .

The Marshall Attorneys and Docken & Company suit covers patients who took Vioxx and allegedly sustained cardiovascular injuries.

It calls on Merck to pay damages for pain and suffering as well as lost income and medical expenses.

The Texas lawsuit, meanwhile, was closely watched by everyone from pharmaceutical firms to consumers for indications of what the future holds for Merck, which plans to fight more than 4,000 state and federal lawsuits relating to Vioxx .

Merck shares dropped 7.7 per cent, to close at $28.06 US, following the verdict.

mlang@theherald.canwest.com