Plaintiffs Seek More Than $1B in Vioxx Case

RIO GRANDE CITY, Texas – Attorneys suing Merck & Co. Inc. (MRK) for the death of a 71-year-old man who took Vioxx asked a Texas jury on Thursday to award more than $1 billion in damages, but Merck lawyers said the pharmaceuticals company should not have to pay anything.

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

The two sides squared off in closing arguments of the latest lawsuit charging that Merck did not disclose the dangers of its now-withdrawn pain medicine and a man died as a result.

The jury in the trial that started January 24 was to begin deliberating later in the afternoon whether Merck is responsible for the death of Leonel Garza, who died of a heart attack on April 21, 2001 after taking Vioxx for arthritis for less than a month.

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

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

Garza family attorney Joe Escobedo told the jury that Merck's greed killed Garza because the company knew the dangers of Vioxx as early as 2000 but did not reveal them because it did not want to hurt sales.

"Why didn't they put the warning on the label? Because of money," Escobedo said. "Everyone in this courtroom should be offended that they put money first."

He said studies have 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," Escobedo said, citing one of many studies on the drug.

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 had since 1978, not because of Vioxx.

"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 and was late in pulling it from the market, but said the FDA even today considers drugs such as Vioxx safe for short-term use.

The trial 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 case, which has moved slowly because state District Judge Alex 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.

Some analysts said the $13.5 million award may signal that Merck's Vioxx legal costs ultimately will approach the $21 billion in charges Wyeth (WYE) has taken for its ill-fated "fen-phen" diet drugs.

Merck has said it will appeal the New Jersey decision, as it will an August 2005 case in which a jury in Angleton, Texas, near Houston awarded $253 million in total damages. Texas law will drastically reduce that award, regardless of the outcome of the appeal.

Merck has won two other trials, including the only federal case so far, which was tried in New Orleans in February.

The drug company has said it plans to fight every lawsuit and settle none.