Civil Trial Against Merck Over Vioxx Goes to Jury

THE WALL STREET JOURNAL - ANGLETON, Texas -- Using markedly different styles, lawyers in the first Vioxx trial yesterday presented their closing arguments to the jury of seven men and five women. The plaintiff's lawyer argued that Merck & Co. had covered up the risks of Vioxx, a painkiller now withdrawn from the market. Defense lawyers asked the jury to focus on Merck's argument that there wasn't scientific evidence that Vioxx caused the death of Robert Ernst. Mr. Ernst, a 59-year-old triathlete, died in 2001 after taking Vioxx for eight months. His death certificate listed an arrhythmia, or irregular heart beat, as the cause of death. Last September, Merck, of Whitehouse Station, N.J., voluntarily withdrew Vioxx from the market after a study found that the drug was linked to an increased risk of heart attack or stroke in patients taking the drug daily for more than 18 months. Merck maintains the drug wasn't linked to arrhythmias.

Judge Ben Hardin, in his charge to the jury yesterday, instructed them to decide whether a "preponderance of the evidence" shows that Vioxx was a cause in Mr. Ernst's death. There can be one or more causes of his death, but according to the charge, jurors must decide if a "greater weight" of the evidence implicates Vioxx as a cause of death. The judge's charge comprised six questions, including three, which boiled down to this: Was Vioxx a cause of Mr. Ernst's death? If so, was there a defect in the marketing or design of Vioxx? And last, "Did the negligence, if any, of Merck & Co. Inc. proximately cause the death of Bob Ernst?"

"We've covered a decade, a decade of denial by Merck," Mark Lanier, the lawyer for the widow of Mr. Ernst, said in his closing argument. "Dots connect from denial to deception." Merck's actions brought about damage that "goes far beyond the Ernst family." Throughout his remarks to the jurors, which ran an hour and 35 minutes, Mr. Lanier used a series of visual screens, Biblical references and a few jokes in arguing for Merck's liability. Mr. Lanier emphasized to jurors they needed only to find the preponderance of evidence against Vioxx to be 51%. He said a heart attack led to Mr. Ernst's arrhythmia.

In their closing statements, Merck defense lawyers Gerry Lowry and David Kiernan said there wasn't any evidence Vioxx caused Mr. Ernst's death. "This case is about the heart attack and clot that never were," Ms. Lowry told the jury, referring to the plaintiff's claim that Vioxx caused a blood clot which led to Mr. Ernst's fatal arrhythmia. In contrast to Mr. Lanier, Ms. Lowry spoke softly while standing at a podium. She urged jurors to ask themselves, "Why did Mr. Lanier spend so much time talking about things that had nothing to do with the case?" Ms. Lowry cited the plaintiff's lawyer's attacks on Merck's marketing and advertising campaigns. Mr. Lanier later responded that the first question in the charge dealt with Merck's marketing. At the end of his rebuttal, Mr. Lanier asked the jury to award actual damages more than $40 million. He didn't seek a specific amount of punitive damages, telling the jurors it was for them to decide.