2 Vioxx verdicts scrapped on appeal

NEWARK, N.J. - Appeals courts in New Jersey and Texas yesterday scrapped verdicts against drugmaker Merck & Co. Inc. stemming from some of the earliest trials involving the company's now withdrawn pain reliever Vioxx.

The Texas court reversed a $26 million verdict against the company stemming from the first trial. The court found no evidence that Robert Ernst had suffered a fatal heart problem from a blood clot triggered by Vioxx. He had been taking the drug for eight months before being stricken in May 2001.

His wife had won a $253 million verdict against Merck in 2005, but limits Texas places on punitive damages cut that to about $26 million.

Also yesterday, a New Jersey appeals court voided $9 million of the $13.9 million awarded to John McDarby in 2006 by a jury in Atlantic City. The panel vacated the punitive-damages award because it found that the punitive-damages requirement in New Jersey's Product Liability Act was preempted by the federal Food Drug and Cosmetic Act.

McDarby survived his 2004 heart attack, but died last fall from complications of his cardiac problems, his attorney said.

The panel affirmed $4.5 million in compensatory damages to McDarby, awarded when the New Jersey jury found Merck had failed to warn of Vioxx's cardiac risks.

Vioxx was pulled from the market in September 2004 after being linked to an increased risk of stroke and heart attack.

Merck, based in Whitehouse Station, N.J., has major operations and 10,500 employees in Montgomery County, Pa.

Yesterday's rulings gave Merck 11 victories and three losses stemming from trials that reached verdicts, with the damages now reduced in one of those losses. Retrials are pending in a few cases.

In a statement, Merck general counsel Bruce Kuhlik said the company was gratified that the Texas 14th Court of Appeals had found Vioxx did not cause Ernst's death.

"In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud," Kuhlik said. "We intend to seek further review of the portion of the award that remains standing. . . . We continue to believe Merck acted responsibly."

McDarby's attorney, Ellen Relkin, said that while they were delighted "with the robust affirmance" of the $4.5 million compensatory verdict - which she said now exceeded $5.1 million with interest - they would consider appealing the reversal of the $9 million in punitive damages.

The key finding, she said, was that state law allowed an additional heart-attack risk factor, such as Vioxx, to be considered in a case involving a person who had underlying cardiac risk factors, such as high cholesterol.