ANGLETON, Texas – Jurors who have spent more than a month hearing medical jargon-filled testimony began their deliberations Thursday in the nation's first Vioxx-related civil trial.
A little more than an hour into deliberations, the panel asked for copies of several documents admitted into evidence during the trial. Lawyers delivered to the jury those and all the other hundreds of documents admitted into evidence.
A Merck & Co. (MRK) lawyer urged jurors at the end of the trial Wednesday to consider what would happen to the century-old company if it knowingly created deadly drugs.
"Would that be good business? Would that make sense?" asked Gerry Lowry before both sides handed the case to jurors after hearing several hours of closing arguments Wednesday.
But plaintiff's lawyer Mark Lanier said Merck should have told doctors and consumers "the good, the bad and the ugly" about Vioxx (search) long before pulling the drug from the market last year.
Lanier, who represents the widow of a Texas man who died in 2001, accused the New Jersey pharmaceutical company of practicing denial and deception for the past decade, minimizing safety concerns about Vioxx to reap billions of dollars in annual profits.
"We have a right to know," Lanier said of any potentially lethal side effects. "They ought to tell us the good, the bad and the ugly."
The first case to go to trial among more than 4,200 lawsuits has drawn national attention from pharmaceutical companies, lawyers, consumers and stock analysts as the first test of what lies ahead for the drug maker. Analysts have speculated Merck's liability could reach $18 billion. The trial began July 14.
In the Texas case, Lanier suggested to jurors Wednesday that mental anguish and loss of companionship damages for the plaintiff, Carol Ernst, could reach $229 million or more.
He said Merck reaped that amount from selling Vioxx in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The U.S. Food and Drug Administration (search) had suggested such changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller naproxen, sold under the brand name Aleve.
In Texas, punitive damages are capped at twice the amount of economic damages — such as lost wages — and up to $750,000 on top of non-economic damages, such as mental anguish and loss of companionship. But the non-economic damages have no limits in this case.
Lanier asked jurors to award at least $40 million in non-economic damages and implored the panel to "be the first jury in America to say 'Time out, Merck.' "
"You decide what's OK, and the drug companies will listen," Lanier said. "Merck will listen."
He also said after jurors left that he expected a verdict by Friday.
Merck launched Vioxx with great fanfare in 1999 as a pain reliever that cut the risk of stomach bleeds by inhibiting a blood-thinning enzyme. Last year the company pulled what grew into a $2.5 billion seller from the market after a study showed it could double risk of heart attack or stroke if taken for 18 months or longer.
Some 20 million people took Vioxx.
Carol Ernst alleges Vioxx triggered the death of her husband, Robert, 59, in his sleep. He took the drug for eight months to ease pain in his hands. She also alleges Merck put profit before safety.
Merck counters that the company acted responsibly, disclosed research and believed Vioxx to be safe until the study last year prompted its withdrawal.
The company has relied heavily on Ernst's autopsy report, which attributes his death to an arrhythmia secondary to clogged arteries. The company says no studies link Vioxx to arrhythmia, so the drug couldn't have caused his death.
Lanier pointed to Merck's own medical manual, which says arrhythmia occurs in 90 percent of heart attack patients. He also presented witnesses, including the pathologist who performed the autopsy, who said a heart attack more than likely caused the fatal arrhythmia, but he died too quickly for his heart to show damage.
Lowry, like Merck's expert witnesses, told jurors the autopsy report didn't note a heart attack because there was no evidence of one beyond theories put forth more than four years later.
"In order for the plaintiffs to win, they have to ask you in that jury room to see in your imagination something that is not in the evidence in this case," she said.
"Remember, possibilities are not evidence," she said later.
Lanier began his closing argument by explaining that a civil verdict can be reached if 10 or more jurors agree based on a preponderance of evidence, rather than the more strict requirement in criminal cases of unanimous agreement beyond a reasonable doubt.
"You can have 49 percent doubt and cast your vote where the 51 percent is," Lanier said.