FindLaw |

Legal News & Information

Vioxx User's Widow Loses $26 Million Award

A Texas appeals court has unanimously overturned the $26 million in damages awarded to a woman who, in the first Vioxx liability suit to go to trial, claimed that the recalled pain drug was responsible for her husband's fatal heart attack.

The state's 14th District Court of Appeals said Carol Ernst had not provided the evidence needed to link her husband's 2001 death with his use of the drug for eight months.

In her suit Ernst maintained that her husband's heart attack likely was caused by a Vioxx-related blood clot that was not discovered during his autopsy.

She said the clot could have dissipated or simply was not found during the procedure.

Ernst said her husband, Bob, was in good physical condition, exercised daily, had not smoked in more than 15 years and was not otherwise at risk for a heart attack.

A jury awarded Ernst $253 million in 2005, but the award was reduced to $26 million under Texas' punitive damage caps.

In reversing the verdict, the appellate court said Ernst's "dissipating blood clot" theory was "only meager circumstantial evidence" that did not rise above a "mere scintilla" if jurors "would have to guess whether a vital fact exists."

The court said Ernst had provided evidence linking Vioxx with an increased risk of causing heart attacks and strokes when taken at certain doses for certain durations.

However, the panel discounted her speculation that a clot could have formed inside her husband and then dissolved before his autopsy.

Merck voluntarily pulled Vioxx from the market in September 2004 after increased evidence linked it with heart attacks and strokes.

Hundreds of lawsuits since filed by Vioxx users or their survivors have been consolidated in a federal court multidistrict proceeding, where a $4.85 billion settlement is pending.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

Ernst is represented by Mark Lanier of the Lanier Law Firm in Houston.Merck is represented on appeal by Katherine D. Mackillop of Fulbright & Jaworski in Houston and Charles Lifland of O'Melveny & Myers in Los Angeles.