Awards in Vioxx cases are scrapped in Texas, N.J.

The Associated Press

Appeals courts in two states scrapped verdicts Thursday against Merck & Co. stemming from some of the earliest trials involving its once popular painkiller Vioxx.

A Texas court reversed a $26-million verdict against the drug maker stemming from the first trial.

The court found no evidence that Robert Ernst suffered a fatal heart problem from a blood clot triggered by Vioxx.

Ernst had been taking the now-withdrawn drug for eight months before being stricken in May 2001.

His widow had won a $253- million verdict against Whitehouse Station, N.J.-based Merck in 2005, but Texas punitive damage caps later cut that to about $26 million.

Also Thursday, a New Jersey appeals court voided $9 million of a $13.9 million award to John McDarby in 2006 by a jury in Atlantic City. The panel vacated the punitive damage award because it found that the punitive damages requirement in New Jersey's Product Liability Act was preempted by the federal Food, Drug and Cosmetic Act.

McDarby survived his 2004 heart attack, but died last fall from complications of his heart problems, his lawyer said.

The panel affirmed $4.5 million in compensatory damages to McDarby, awarded when the jury found that Merck failed to warn of cardiac risks posed by Vioxx.

Thursday's rulings give Merck 11 victories and three losses stemming from the trials that reached verdicts, with the damages now reduced in one of those losses. Retrials are pending in a few cases.

Merck pulled Vioxx in September 2004 after its own study showed Vioxx doubled risk of heart attack or stroke.

In a statement, Merck General Counsel Bruce Kuhlik said the company was gratified that the Texas 14th Court of Appeals found Vioxx did not cause Ernst's death.

"In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud," Kuhlik said. "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."

McDarby lawyer Ellen Relkin said that while they were delighted "with the robust affirmance" of the $4.5-million compensatory verdict -- which she said now exceeds $5.1 million with interest -- they will consider appealing the reversal of the $9 million in punitive damages.

The New Jersey ruling also upheld a verdict in favor of Merck in the case of Thomas Cona, who survived a June 2003 heart attack. His case was heard simultaneously in Atlantic City with McDarby's case.

Cona lawyer W. Mark Lanier called the ruling "unfortunate," but said the New Jersey panel's 126-page decision on Cona and McDarby was well-reasoned.

Lanier, who also represented Ernst, complained that the Texas appellate panel's ruling failed to interpret the evidence in the light most favorable to the jury verdict.

Lanier said he would appeal to the Texas Supreme Court if the appellate panel declines to reconsider the ruling.

All three cases -- Ernst, McDarby and Cona -- were excluded from the settlement Merck reached in November in which it agreed to pay $4.85 billion to end thousands of other Vioxx lawsuits.

In November, Merck announced the proposed $4.85- billion settlement for U.S. personal injury cases involving a heart attack, stroke or death. According to the company, about 45,000 eligible claimants had initiated enrollment as of March 31.

Shares of Merck rose 26 cents Thursday to $38.92.

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