Mark Lanier in
his office with the Merck manual (Associated Press Photo)Ernst Trial Updates
Ernst versus Merck
Trial Commenced July 11, 2005 in Angleton Texas (near Houston). The jury came back on August 19, 2005 with a ten to two decision in favour of the Plaintiff (we won) and the following damage awards:
Loss of Pecuniary Past: $100k
Loss of Pecuniary Future: $350k
Loss of Companionship Past: $2M
Loss of Companionship Future: $10M
Mental Anguish Past: $2M
Mental Anguish Future: $10M
Exemplary: $229M
The damage awards will be automatically
reduced by Texas law to under $100 Million and the entire decision is being
appealed by Merck.
The Plaintiff is Carol Ernst whose
husband Robert died from an arrhythmia in his sleep at age 59. This was not
seen as
a heart attack or stroke case and for that reason it looked like an easier one
for Merck to defend until key evidence was introduced that there was in fact
likely a heart attack. Robert was a Vioxx user for 8 months and was physically fit
having exercised regularly. He worked as Produce Manager for a Wal-Mart
store in Fort Worth Texas. Plaintiff's counsel is Mark Lanier a very
effective and respected lawyer who won a major Asbestos case in Brazoria County
in 1998.
Mark Lanier in
his office with the Merck manual (Associated Press Photo)
Defence Counsel is Gerry Lowry who successfully defended Bayer at a Baycol trial. The presiding Judge is Ben Hardin.
MONDAY DAY One (July 11, 2005): 120 jury panellists attended court to undergo preliminary screening. Each was given a 19 page questionnaire with over 100 questions about them and their personal views. These questionnaires will be reviewed by the lawyers of each side for purpose of challenging jurors who appear to have biases. While the jurors were completing forms the lawyers discussed with the judge which expert witnesses would be called.
TUESDAY DAY Two: The lawyers met all day with the judge to review preliminary issues for trial in advance of jury selection.
WEDNESDAY DAY Three: Today lawyers questioned potential jurors based on the questionnaires completed. This is called "Voir Dire" and should result in the selection of a jury. The original group of 120 was reduced to 90 based on conflicts. Questions and answers left the impression that a fair jury can be selected so the trial will proceed. While many potential jurors already had serious concerns about Vioxx and the fact that it had been recalled due to safety concerns most indicated that they had an open mind about the case. A full jury of 7 men and 5 women was selected.
THURSDAY DAY Four: Opening Statements were made to the jury by lawyers for each side.
FRIDAY DAY Five: The Judge ruled that evidence would be called starting on Monday. See the Article on the trial from Fortune Magazine.
MONDAY DAY Six (July 18, 2005): The first witness is Merck's Chief Epidemiologist Nancy Santanello who is being called under subpoena by the Plaintiff to establish what Merck knew of the danger of Vioxx and when it was known. Through Ms. Santanello numerous documents and reports would be introduced in evidence and explained to the jury. Court was in session for the afternoon only.
TUESDAY DAY Seven: Testimony of Nancy Santanello continued. During the testimony a number of videotapes were shown to the jury.
WEDNESDAY DAY Eight: Nancy Santanello still on witness stand being questioned by Mark Lanier. She said that Merck did not study whether Vioxx caused heart attacks prior to the release of the drug to the public.
THURSDAY DAY Nine: Mark Lanier finished his examination of Nancy Santanello in the morning and she was questioned by the Merck lawyers in the afternoon.
FRIDAY DAY Ten: Merck Lawyers continue questioning of Nancy Santanello and then the Plaintiff calls Dr. David Egilman a Public Health Professor at Brown University as the first expert witness to give evidence against Merck. It is Dr. Egilman's opinion that Vioxx caused Mr. Ernst to suffer a heart attack that led to his death.
MONDAY DAY Eleven (July 25, 2005): The Plaintiff called a cardiologist expert witness Dr. Isaac Wiener to the stand in the morning. In the afternoon Dr. Nancy Santanello was recalled to continue as witness examined by Merck's lawyers.
TUESDAY DAY Twelve: The Plaintiff wanted to call the coroner who did the autopsy on Mr. Ernst to deal with the cause of death issue. Due to an objection as the coroner was not on the earlier witness list a deposition was to be held of the coroner before she could be called to the stand. In the afternoon Mark Lanier used a prop of 157 boxes of evidence in the court room to show the amount of material Merck sent to the FDA to review when it was concerned about the safety of Vioxx. The suggestion of this was that Merck was trying to bury the FDA in evidence so they would not be able to seriously review the issues. This was during further evidence with Dr. Santanello back on the witness stand. Defence counsel requested that the boxes be moved so that she could see the witness.
WEDNESDAY DAY Thirteen: The jury had a break for deposition of the Coroner in their absence.
THURSDAY DAY Fourteen: The coroner's evidence is allowed to be heard by the jury. That evidence is that the death was too soon from arrhythmia to notice damage of a probable heart attack. This helps the Plaintiff overcome the argument that arrhythmia is not caused by Vioxx as the condition is now linked to a heart attack.
FRIDAY DAY Fifteen: Merck is appealing the decision to allow the coroner's evidence to be heard. A three judge panel turned down the appeal which will next be heard by the Texas Supreme Court.
MONDAY DAY Sixteen (August 1, 2005): The Texas Supreme Court rejected Merck's appeal allowing the evidence to now go before the jury.
TUESDAY DAY Seventeen: The Jury heard the pathologist's evidence that there was likely a heart attack which caused the death of Robert Ernst. Deposition evidence was shown by Plaintiff's counsel of a former Merck marketing executive who promoted Vioxx. Mr. Ernst's stepdaughter gave evidence of the family's loss.
WEDNESDAY DAY Eighteen: Continuing evidence for the Plaintiff with a time line chart presented to the jury.
THURSDAY DAY Nineteen: Plaintiff case concludes after calling Mr. Ernst's widow.
FRIDAY DAY Twenty: Defence calls scientist who was part of team which developed Vioxx and he is put through tough cross examination by Plaintiff's counsel.
MONDAY DAY Twenty-one (August 8, 2005): Merck calls pathologist Thomas Wheeler of Baylor University who gives evidence that Vioxx could not have caused the death of Mr. Ernst in his opinion.
TUESDAY DAY Twenty-two (August 9, 2005): Dr. Wheeler finished his evidence and former Merck CEO Ray Gilmartin was called to the stand. His evidence was that Vioxx was very important to Merck as it was about to lose income due to expiring patents on other drugs but that Merck did not rush Vioxx to market. He said that Merck believed Vioxx to be safe but continued to test it when it was on the market due to caution and acted conservatively in stopping Vioxx sales.
This daily update was interrupted due to my absence. Murray Miskin
WEDNESDAY AUGUST 17, 2005: Closing arguments were made to the jury
THURSDAY AUGUST 18, 2005: Jury deliberations all day
FRIDAY AUGUST 19, 2005: The jury returned with a 10 to 2 verdict in favour of the Plaintiff with very large damage figures. Texas law will automatically reduce the amounts awarded. Merck announced it will appeal and continue to fight every case. Merck stock dropped 8% immediately with further drops in the next two trading days.
READ NEW YORK TIMES FOLLOW UP TO TRIAL
ON AUGUST 26, 2005 MERCK HINTED THAT IT WILL CONSIDER SETTLING SOME VIOXX CASES.