Merck Splits Appeals On Two Early Vioxx Cases
9 CommentsBy Ed Silverman // May 29th, 2008 // 10:37 am
In Texas, an appeals court scrapped a $26 million verdict stemming from the first Vioxx trial by finding no evidence that Robert Ernst suffered a fatal heart problem from a blood clot triggered by the painkiller. He died in 2001 after taking Vioxx for eight months, and his widow had won a $253 million verdict in 2005, although Texas punitive damage caps later cut that to about $26 million. Here is the Ernst decision, which Ernst lawyer Mark Lanier says he will appeal.
And in New Jersey, a jury two years ago ordered Merck to pay John McDarby and his wife $13.5 million in punitive damages, although that didn’t include compensatory damages, which amounts to $4.5 million, plus about $600,000 in interest, and still stands. That’s because the NJ appeals court ruled there was no preemption of the state’s Product Liability Act.
In its appeal, Merck had argued that the McDarby case warranted reversal, because Superior Court Judge Carol Higbee shouldn’t have let jurors second-guess the FDA’s approval of a label that didn’t warn of heart attack risks. Here is the McDarby decision.
“We are gratified that the Texas appeals court correctly found that VIOXX did not cause Mr. Ernst’s death and reversed the previous decision for the plaintiff in the first VIOXX case to go to trial. In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud,” Bruce Kuhlik, Merck’s general counsel, says in a statement. “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.”
Ellen Relkin, an attorney for the McDarbys, sent us this statement: “We believe the very strong affirmance of the compensatory verdict is a major victory for the McDarbys and other persons injured by dangerous drugs and irresponsible conduct. The court agreed with plaintiffs’ analysis on all of the major issues underlying the compensatory verdict including the fact that both NJ and federal law do not allow preemption of a failure to warn claim…
“We are disappointed by the rulings relating to the Consumer Fraud Act and punitive damages, which are based on very technical analysis of statutory language, with which we disagree. However, on the fundamental claim of Merck’s failure to warn and its role in Mr. McDarby heart attack, the Court appreciated the gravity of the facts and ruled appropriately on the numerous legal issues on appeal.”
Paul
And the plaintiffs’ house of cards keeps falling.
Justice in Michigan
Thanks, Ed.
These are fascinating cases, especially New Jersey. While the verdict against Merck was overturned, so also were the major arguments that have been used to support preemption. Indeed, there is a section in the decision (from roughly pp. 60-70) which takes apart the precedents and arguments that have been used to support preemption piece by piece. There is very little left standing.
The history of the Vioxx cases is, indeed, itself one of the best arguments against preemption. Far from seeing runaway juries hijacking all that is good in the world, we see a highly deliberative and diligent process, weighing and measuring factors as they should be.
The argument against preemption is, at bottom, only an argument in favor of this: the opportunity for judges and juries to play their traditional roles. It is not for or against one side or other. It is only for sustaining a system that has served us well, as the history of the Merck cases demonstrates yet again.
Nathan
I’m not understanding something. In the MSNBC article describing this case, the reporter says: “The panel found that New Jersey’s Product Liability Act was pre-empted by the federal Food Drug and Cosmetic Act.”
That seems to SUPPORT the idea of pre-emption, doesn’t it?
Ed Silverman
Hi Nathan,
I included the link to the McDarby opinion so that folks can see for themselves what was decided. The discussion on preemption is near the end, starting on page 66. I believe I got it right. Let me know what you think.
Regards
ed
Justice in Michigan
I’ve already weighed in, but Ed got it right without question, in my view. Indeed, as above, I’d say the section against preemption is as devastating to its usual legal/precedential arguments as anything I’ve seen - certainly in compact, summary form.
So MSNBC’s report, dare I say, is false and misleading. Ed is right that the summary is on p. 66, but the arguments against preemption begin on p. 58. Devastating.
Nathan
Yep, I think you guys are right. It looks like a win for Merck, but not for preemption.
JC
The Ernst case was not a good one to bring to trial. The autopsy report was ambiguous from the start.
Paul
JC
I agree. The question is why did they do it? Was it to make a point? To extort from Merck based on every patient got hurt (unlikely).
Do you all remember when the news first broke and this guy Lanier came out saying that he will bankrupt Merck singlehandedly. That was a lot of bravado.
Justice in Michigan
A fine point that will probably only be of interest to a few -
It turns out there _was_ an aspect of FDA preemption upheld in the New Jersey case. New Jersey law specifies punitive damages may be awarded in civil cases if jurors are convinced that defendants committed knowing fraud. This Vioxx case was the first in which punitive damages were awarded on that basis.
This was the part of the decision that the appeals court overturned, arguing that only FDA can find fraud against itself. This issue, based on an earlier case called Buckman, happens also to be central in our Michigan FDA preemption law. It is often confused with FDA preemption more generally. (As it was in most of the discussions of the Warner Lambert v. Kent case.)
In the core part of the case - was Merck liable for damages as a result of their behavior around Vioxx - there was _no_ overturning of the original verdict (the “compensatory damages”) which still amount to a few million dollars.
So, in the end, it is inaccurate to say that the New Jersey Vioxx case was overturned. Only the punitive damages portion was, which has less to do with Merck’s liability to these particular plaintiff’s than its overall delinquency.
What Paul called a “house of cards” thus turned out to be very sturdy indeed.