ANGLETON, Tex., Aug. 17 - The lawyer for survivors of a man who died after taking Vioxx told a Texas jury in his closing argument on Wednesday that Merck, the drug's maker, had lied to the public about the medicine's dangers and should be punished with a very large damage award.
Robert C. Ernst during a race in the late 1990's. He died in 2001 at age 59 of an irregular heartbeat.
W. Mark Lanier, the lawyer, said that Merck's deceptive marketing to doctors and consumers had caused Robert C. Ernst to take Vioxx, a painkiller and arthritis drug, leading to his death at age 59 in May 2001.
Mr. Lanier asked the jury of seven men and five women to award Mr. Ernst's wife, Carol, $40 million in compensatory damages and many times that in punitive damages. Since this trial is the first Vioxx-related personal injury case to reach a jury, a large award is necessary to persuade drug companies to disclose the risks of their medicines, Mr. Lanier said.
"Please don't let 'em off light," Mr. Lanier said in an impassioned speech to the jury at the end of almost six hours of closing arguments by both sides. "Let your voice be heard."
But lawyers for Merck implored the jury not to hold Merck responsible for Mr. Ernst's death, saying that Mr. Lanier had never proved that Vioxx caused Mr. Ernst to die in his bed on May 6, 2001. A coroner found Mr. Ernst's cause of death to be an arrhythmia, or irregular heartbeat, and no clinical trials have ever linked Vioxx to arrhythmias, said Gerry Lowry, a lawyer for Merck.
"They've got to establish a link between Mr. Ernst's cause of death and Vioxx, but there is no such link," Ms. Lowry said.
David Kiernan, another Merck lawyer, said that the company had repeatedly tested Vioxx for heart risks and shared its data with doctors and the Food and Drug Administration. When a clinical trial in 2004 showed that Vioxx was riskier than a placebo, or sugar pill, Merck acted prudently and withdrew the drug from the market, Mr. Kiernan said.
"This drug has been studied extensively," Mr. Kiernan said.
The closing arguments came after both sides presented almost five weeks of testimony about Vioxx, a drug that Merck sold from 1999 to 2004 and that was taken by an estimated 20 million people. Mr. Ernst's family is suing Merck in state district court in Brazoria County, Tex., contending that Vioxx caused his death.
More than 4,000 other people have also sued Merck, charging that Vioxx caused them to suffer heart attacks and strokes. Analysts say that from 20,000 to 100,000 people or their families may eventually sue the company, and estimates of Merck's Vioxx-related liabilities have ranged from $4 billion to as much as $30 billion. Nearly 200 lawyers, reporters and spectators packed the wooden benches Wednesday in the courtroom in Angleton, a town of 18,000 about 40 miles south of downtown Houston.
Mr. Lanier and Merck's defense team were each allotted 2 hours and 30 minutes for their presentations, but the judge allowed both to exceed their time. The jury appeared to play close attention throughout the day, with the exception of a few minutes of Mr. Kiernan's argument, as he discussed the details of the clinical trials Merck conducted on Vioxx.
The jury will begin deliberating on Thursday. Under the instructions from Judge Ben Hardin, jurors must first determine three issues: whether Merck failed to warn doctors about Vioxx's dangers; whether Vioxx was a defective product and could have been designed differently; and whether Merck's negligence is responsible for Mr. Ernst's death.
Under Texas law only 10 of the 12 jurors must agree on the questions to reach a verdict. If the jury answers yes to any of the first three questions, it may award Ms. Ernst compensatory damages for Mr. Ernst's lost wages, as well as her pain and suffering and the loss of his companionship. Because Mr. Ernst worked at Wal-Mart at the time of his death, his lost wages are relatively trivial, but the jury can award as much money as it sees fit for Ms. Ernst's mental anguish.
If the jury decides to award compensatory damages, it will then go on to decide whether Merck sold Vioxx despite knowing it had "an extreme degree of risk" and acted with "conscious indifference." In that case, the jury can award punitive damages. Under Texas law, those damages are capped at three times the amount of any compensatory damages.
Mr. Lanier divided his presentation into two parts, a segment of almost two hours in the morning, and at the end of the day a closing rebuttal to Merck's argument. Mr. Lanier is considered one of the best trial lawyers in the United States, and he appeared to be in top form throughout his argument, using a fast-moving PowerPoint presentation to back his contention that Merck had denied Vioxx's risks and deceived doctors and consumers.
