Vioxx jurors talk about verdict - JURY QUESTIONS

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Vioxx . MedicalConspiracies@googlegrojurors talk about verdict

Aggressive marketing played a role, they say, and one number kept coming up

By RUTH RENDON

Copyright 2005 Houston Chronicle

 

http://www.chron.com/cs/CDA/ssistory.mpl/nation/3318238

 

JURY QUESTIONS

Ten of the 12 jurors had to answer the following questions in order to reach a

verdict. The jury's decision was unanimous.:

 

• 1. Was there a defect in the marketing of Vioxx at the time it left the

possession of Merck & Co., Inc., that was a producing cause of the death of Bob

Ernst?

Answer: Yes

 

• 2. Was there a design defect in Vioxx at the time it left the possession of

Merck & Co., Inc. that was a producing cause of the death of Bob Ernst?

Answer: Yes

 

• 3. Did the negligence, if any, of Merck & Co. Inc., proximately cause the

death of Bob Ernst?

Answer: Yes

 

 

 

--

 

If jurors answer " yes " to questions No. 1, 2 or 3, then they must answer the

following.

 

• 4. What sum of money, if paid now in cash, would fairly and reasonably

compensate Carol Ernst for her damages, if any, resulting from the death of Bob

Ernst?

Answer separately, in dollars and cents, for damages, if any.

 

• a. Pecuniary loss sustained in the past: $100,000

 

• b. Pecuniary loss that, in reasonable probability, will be sustained in the

future: $350,000

 

• c. Loss of companionship and society sustained in the past: $2 million

 

• d. Loss of companionship and society that, in reasonable probability, will be

sustained in the future. $10 million

 

• e. Mental anguish sustained in the past. $2 million

 

• f. Mental anguish that, in reasonable probability, will be sustained in the

future: $10 million

 

 

 

--

 

If jurors answer " yes " to questions No. 1, 2 or 3 and have inserted a sum of

money in answer to question No. 4, then jurors will answer the following.

 

• 5. Do you find by clear and convincing evidence that the harm to Bob Ernst

resulted from malice attributable to Merck & Co., Inc.?

Answer: Yes

 

 

 

--

 

If jurors answer " yes " to question No. 5, then they will answer the following

question.

• 6. What sum of money, if any, should be assessed against Merck & Co. Inc. and

awarded to Carol Ernst as exemplary damages for the death of Bob Ernst?

$229 million.

 

ANGLETON - Throughout the six-week trial surrounding the once popular painkiller

Vioxx, the number $229 million kept being posted on a large projection screen in

the courtroom.

 

Plaintiff's attorney Mark Lanier said the number represented the amount of money

Merck made by waiting four months to add a precaution in Vioxx's label.

 

Ten of the dozen jurors thought that number would best send a message to Merck &

Co., the makers of Vioxx, when issuing punitive damages Friday.

 

The first question jurors had to answer was if there was a defect in the

marketing of Vioxx and whether the drug was a producing cause of Robert Ernst's

death. The question had a domino effect as jurors found in favor of Ernst's

widow, Carol, in answering the other five questions posed to them.

 

A majority of the jurors said Merck's aggressive marketing of Vioxx led to their

decision.

 

Juror Derrick Chizer and other jurors said they were surprised that no Merck

marketing personnel attended the trial.

 

" Marketing was a big part of the case, " he said. " If you're right, you're going

to be there to answer. "

 

A part of the trial centered on Merck's marketing efforts, including spending $1

million for the drug's launch party.

 

Carol Ernst alleged in her lawsuit against Merck that her husband's 2001 death

was caused by Vioxx. Robert Ernst took Vioxx every day for almost eight months

to treat the pain in his hands.

 

" When you write that figure ($229 million), it means Merck is going to have to

get responsible, " said Rhonda Wade, 41, of Clute.

 

" It's not the money, " added Marsha Robbins, 53, of Freeport, who served as the

presiding juror. " It's accountability. "

 

Carol Ernst was awarded $253.45 million Friday, including $229 million in

punitive damages.

 

" That was a number they kept saying over and over, " juror Stacy Smith, a

21-year-old college student, said. " It was in our mind. When you're sitting

there for five weeks and that number kept being repeated, the number stuck in

our mind. "

 

Jurors deliberated 10 1/2 hours over two days before reaching a decision. The

group began hearing testimony in the case on July 14 in a large courtroom in the

Brazoria County Courthouse.

 

 

Label change ordered

During the trial — the country's first of nearly 4,300 lawsuits involving Vioxx

— Lanier displayed an internal Merck document that showed the company would make

$229 million if the company waited four months to add a precaution to the label.

 

The U.S. Food and Drug Administration and Merck quibbled over the label change

between 2000 and 2002. The FDA eventually sent Merck a letter in October 2001

telling the company to change the label. The precaution was to say that a study

showed five more people taking Vioxx had cardiac events than those taking

another painkiller.

 

The company complied with the FDA's request in February 2003 — four months after

the federal agency made the request.

 

Merck has contended that Vioxx had nothing to do with Robert Ernst's death

because he died of a heart arrhythmia and took the drug less than eight months.

 

Vioxx is no longer on the market but made up to $2.5 billion a year between 1999

and September 2004.

 

 

Attorneys visit with jurors

After the verdict was read Friday afternoon by state district Judge Ben Hardin,

jurors were escorted to a nearby building where attorneys spent time visiting

with them.

 

Chizer said the message jurors wanted to send to Merck was for the company to

take their responsibility seriously.

 

" Every life counts to us. They should be responsible. If they care, then show

it, " said Chizer, 43, of Pearland, who works for the Social Security

Administration.

 

Jonathon Skidmore, an attorney for Merck, said the company had acted responsibly

by researching the drug prior to approval in clinical trials involving almost

10,000 patients and monitoring the medicine.

 

Two jurors, James Fruidenberg, 46, of Lake Jackson, and Brandon Beaver, 28, of

Manvel, were in the minority in Friday's verdict. Under Texas law, only 10 out

of the dozen jurors must agree on the verdict and damages in civil cases.

 

" I couldn't convict a reasonable medical company based on probability, "

Fruidenberg said. He explained that there was a probability that Vioxx caused

Ernst's death but he believed there was a certainty that Ernst had some heart

disease.

 

 

Chronicle reporter Richard Stewart contributed.

 

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