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No verdict in Texas Vioxx case; jury back Friday

Posted on: Thursday, 20 April 2006, 17:31 CDT

By Jeff Franks

RIO GRANDE CITY, Texas (Reuters) - A Texas jury failed to reach a verdict on Thursday on whether the painkiller Vioxx caused the death of a 71-year-old man and was to return on Friday to deliberate again in the latest lawsuit charging that Merck & Co. Inc. hid the dangers of the now-withdrawn medicine.

The 10-man, two-woman jury deliberated more than three hours before telling state District Judge Alex Gabert they wanted to break for the day, but gave no indication they were deadlocked.

Attorneys for the family of the late Leonel Garza asked the jury in closing arguments to award more than $1 billion in damages, but Merck lawyers said the company should have to pay nothing.

The damage request includes $22 million for mental anguish and personal loss and $1 billion in punitive damages, which punish a defendant for wrongful behavior.

The latter are capped at only $750,000 by Texas law, meaning the plaintiffs could collect no more than that even if the jury awarded the full $1 billion.

This is the fifth of more than 10,000 Vioxx lawsuits filed against the New Jersey-based drug maker to go to a jury. The cases are being closely watched to determine how much the Vioxx issue ultimately will cost the company.

Merck pulled the $2.5 billion-a-year drug from the market in September 2004 after a study showed Vioxx doubled heart attack and stroke risk for patients who took it 18 months or more.

Garza, a U.S. Army veteran, died on April 21, 2001, after taking Vioxx for arthritis for less than a month.

Garza family attorney David Hockema told the jury Merck knew the truth about the dangers of Vioxx since 2000, but did not disclose it because the company did not want to hurt sales.

"What is this case about? Merck lied and people died, period," he said. "They took Mr. Garza's hope for a little pain relief and left him dead in the dirt."

Another Garza attorney, Joe Escobedo, said studies had shown that Vioxx can cause blood clots that lead to heart attacks starting almost with the first pills.

"It doesn't take 18 months; it doesn't take 18 days. The results were immediate," he said.

He asked for $1 billion in punitive damages because he said it would send a message to Merck, which both sides agreed before arguments has a net worth of $17.3 billion.

"You have the power to tell them 'don't bring a drug that causes death and misery back on the market,"' Escobedo said.

The other $22 million in damages would be to compensate the Garza family for the anguish and pain of losing their patriarch, he said. Texas law does not cap so-called "compensatory" damages.

Merck lawyer Richard Josephson countered that Garza died of chronic heart disease he had since 1978, not because of the drug.

"You'll see that Mr. Garza's time was up," he said. "The idea that Mr. Garza was in good health is science fiction. He was a serious candidate for a heart attack."

Based on medical records, Josephson also questioned whether Garza took Vioxx more than a week and whether he took it at all after April 3.

"If he stopped taking it on April 3 it would have been out of his blood April 8 and Vioxx could not have been in any way responsible for a heart attack on April 21," he said.

Josephson did not address the issue of whether Merck withheld information on the dangers of Vioxx, but said the FDA even today considers drugs such as Vioxx safe for short-term use.

The case is taking place in Starr County, which is poor and heavily Hispanic and considered by legal experts to be a friendly jurisdiction for plaintiffs. Rio Grande City is located on the U.S.-Mexico border.

The trial, which began January 24 but has moved slowly because Gabert could hold court only one week a month due to other duties, follows a New Jersey trial this month in which $13.5 million damages were awarded to a 77-year-old man who had a heart attack after taking Vioxx more than four years.

But it was a mixed verdict for Merck because the jury also found that Vioxx did not cause the heart attack of a second defendant in the trial.

Source: REUTERS

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