Appellate Law

$26 Million Vioxx Judgment Reversed

By D. Todd Smith

$4.85 billion In Merck & Co. v. Ernst (No. 14-06-00835-CV), the Fourteenth Court of Appeals has reversed Mark Lanier's $26.1 million judgment in a highly publicized Vioxx case and has rendered judgment that the plaintiff take nothing.  (The jury verdict included a $229 million award for punitive damages, which trial court reduced in accordance with statutory caps.)  The concluding paragraphs state:

The epidemiological evidence supports the conclusion that Vioxx use at a certain dose and duration is associated with an increased risk of thrombotic cardiovascular events.  The expert's speculation that a clot could have existed, but could have dissolved, been dislodged, or fragmented gives rise to nothing more than conjecture.  Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence except that which they could not ignore, we find no evidence that Ernst suffered a thrombotic cardiovascular event, i.e., a myocardial infarction triggered by a blood clot.  Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband's death.  Merck's first issue is sustained.

The judgment of the trial court is reversed and judgment is rendered that appellee take nothing.

Merck has aggressively defended these cases, rather than settle them.  Looks like that strategy will continue paying off.

Clarification:  My comment above is somewhat unclear, perhaps because I had a limited amount of time to write this post.  I accurately described Merck's litigation approach to the Ernst case and others—before it entered into a $4.85 billion global settlement late last year.  That may not seem aggressive, but some are speculating that Merck will save as much as $10 billion by resolving the cases this way.

Full post as published by Texas Appellate Law Blog on May 29, 2008 (boomark / email).