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The Vioxx Trial Q & A, Part I

Lets use a Q&A format to examine some aspects of the first Vioxx trial. In the first part, I will attempt to answer three question.

Q: How much of the $253.5 million verdict will Merck actually have to pay?

A: No more than $26.1 million. The jury awarded $450,000 in past and future lost earnings (the deceased was a Walmart employee who had recently taken some time off work and did not earn a whole lot of money), $12 million for the widow’s loss of society and consortium, $12 million for mental anguish, and $229 million in punitive damages.

A Texas tort reform statute limits punitive damages to an amount equal to twice the economic damages plus $750,000. That adds up to $1.65 million ($450k + $450K + $750k) in punitive damages and brings the total to $26.1 million. Of course, Merck may have to pay less if they are successful on appeal.

As a side note, the limitation on punitive damages in this type of situation is a wholly appropriate tort reform measure for several reasons. First, it is the purpose of punitive damages to punish the defendant and to deter future wrongful conduct. It is not to compensate the plaintiff for a loss. Thus, even with the limitation, the plaintiff is made whole.

Secondly, the amount of punitive damages awarded by the jury encompasses the entirety of the wrongful conduct of the defendant. Merck faces more than 4,000 Vioxx suits. If each jury is permitted to punish Merck for the totality of its conduct, there is a substantial chance that Merck will suffer many times the amount of punishment that any jury felt was appropriate. If Merck’s conduct with regard to Vioxx is worthy of $229 million of punishment, then the total of punitive damages in all Vioxx cases should be $229 million, not $229 million in each case.

Q: Did the jury just pull the $229 million punitive damage award out of the air?

A: No. The plaintiff introduced evidence that Merck had stalled FDA efforts to put more explicit warnings of cardiovascular risks on the product label. Plaintiff also introduced a Merck email that noted that if Merck could stall implementation of the new warning for four months, it would generate an additional $229 million in profit. The jury, apparently, found that Merck should be punished in an amount equal to four months of additional profits earned by stalling the warnings. The Times notes:

The $229 million punitive damages figure was not picked at random, but referred to a 2001 Merck estimate of additional profit the company might make if it could delay an F.D.A. warning on Vioxx's heart risk. Mr. Lanier mentioned that monetary figure in his closing argument.

That seems a pretty reasonable way for the jury to decide on an amount needed to punish Merck for its conduct.

Q: How did plaintiff prove causation?

A: Many observers thought the Ernst case was weak on the issue of causation. The coroner performing the autopsy of Robert Ernst, Dr. Maria Araneta, listed the cause of death as cardiac “arrhythmia secondary to clogged arteries.” No study has ever found that Vioxx causes arrhythmia. Studies have shown that Vioxx increases the risk of heart attacks. If Mr. Ernst did not die of a heart attack, then there was no evidence that Vioxx caused the death and Merck might escape liability.

Merck relied on the autopsy report to make its causation argument. Plaintiff countered that argument by presenting the testimony of Dr. Araneta.

One report noted:

Unlike many other pending lawsuits involving obvious heart attacks, the Ernst case centered on an autopsy that attributed his death to an arrhythmia secondary to clogged arteries. That autopsy - and the coroner who performed it - proved critical to the trial.

Merck pointed to the autopsy as proof that Vioxx could not have caused Ernst's death. However, Dr. Maria Araneta, the pathologist who performed Ernst's autopsy, testified for Ernst. She said a blood clot that she couldn't find probably caused a heart attack that triggered Ernst's arrhythmia.

Araneta didn't blame Vioxx, however, noting she knew little about the drug when she performed Ernst's autopsy. But three plaintiff's experts in arrhythmia, cardiology and public health did.

Araneta acknowledged that she found no damage to Ernst's heart that would have shown that he had suffered a heart attack. Nonetheless, she opined that his death may have been too quick to leave any damage to the heart. She also acknowledged that she found no blood clot in the autopsy but argued that vigorous CPR may have dislodged the clot. She testified that it was probable (i.e. more likely than not) that a heart attack caused by a blood clot caused the arrhythmia that resulted in Ernst’s death.

In sum, the causation evidence was tenuous and will be subject to scrutiny on appeal. While I know nothing about Texas evidence standards, my gut tells me that the plaintiff submitted barely enough evidence of causation to get the issue to the jury. At this point, that is all they needed to do.

Soon I hope to post an analysis of additional questions:

1) What evidence was most persuasive to the Texas Jury?

2) Did Merck's counsel make any tactical errors?

3) Are there any bright spots for Merck? and

4) What happens next in Vioxx litigation?

Don't touch that dial.

Posted by Dwight Meredith at August 21, 2005 09:36 PM