The ongoing saga of lawsuits against Merck for cases of serious illness or death attributed to rofecoxib (Vioxx^®) was attenuated somewhat by Merck's November $4.85 billion settlement, but that deal did not include cases that had gone to trial and were pending appeal. Now, awards in two of those cases have been either scrapped or greatly reduced, saving the company nearly $40 million in payouts.

The Ernst case in 2005 was the first Vioxx lawsuit to reach a courtroom. The Texas jury had found Merck liable in the death of Robert Ernst and awarded his widow, Carol Ernst, $253.4 million. This figure was reduced to $26 million due to state caps on damages and now has been reduced to zero. According to a ruling today by the Fourteenth Court of Appeals in Texas, there was "no competent evidence that a blood clot triggered by Vioxx ingestion" caused Mr. Ernst's death. Merck's General Counsel, Bruce Kuhlik, said in a statement, "We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death and reversed the previous decision."

Completing Merck's hat trick, the Superior Court of New Jersey's Appellate Division threw out punitive damages and some compensatory damages awarded in two Vioxx cases tried in Atlantic City in 2006. John and Irma McDarby had been awarded $4.5 million in compensatory damages and $9 million in punitive damages. The court struck down the entire punitive award and the part of compensatory damages that had been based on the state's consumer-fraud statute, which it deemed not applicable. New Jersey's Product Liability Act was held to be pre-empted by the federal Food Drug and Cosmetic Act (FDCA).

The New Jersey court also voided the $135 of consumer-fraud damages awarded to plaintiff Robert Cona (triple the amount he had paid for his Vioxx supply). The jury had not found Merck liable in the Cona case.

Perhaps almost as gratifying for the big pharma company, the New Jersey court also said that Merck is not responsible for legal fees and costs amounting to >$5 million to plaintiffs' lawyers. According to Mr. Kuhlik, "Today's decisions overturn almost $40 million of damages and attorneys' fees previously awarded to plaintiffs at trial. We intend to seek further review of the portion of the award that remains standing after the New Jersey decision. We continue to believe Merck acted responsibly."

Reference

1. Tesoriero HW. Appeals courts overturn Vioxx verdicts against Merck. WSJ Website. http://online.wsj.com/public/article/SB121207060977129293.html?mod=2_1566_topbox.