Texas court overturns Vioxx ruling

Marilyn Tennissen May 15, 2008, 6:38am

A Texas appeals court overturned a multimillion-dollar verdict against the drug maker Merck & Company in a case involving its withdrawn painkiller Vioxx.

In April 2006, a jury in Rio Grande City awarded $32 million to the widow of 71-year-old Leonel Garza, who died after taking the painkiller Vioxx for less than one month.

The award included $7 million for compensatory damages and $25 million for punitive damages, but under a Texas law that limits damages it was later cut to about $7.75 million. The Garza trial was one of the few trials Merck lost over Vioxx claims.

On Wednesday, May 14, the Fourth Court of Appeals in Texas overturned the verdict, ruling that Mr. Garza's family had not proved that his use of Vioxx caused blood clots that led to his heart attack. The opinion was signed by Justice Sandee Bryan Marion.

During the trial, Merck lawyers argued that Mr. Garza's heart attack was a result of his 23 years of heart disease. Garza had a prior heart attack and heart bypass surgery, smoked for nearly 30 years and died of the second heart attack after taking Vioxx in 2001.

The three-judge panel agreed, concluding that the family did not provide sufficient evidence to rule out his long-standing heart disease as the cause of his fatal heart attack.

"Today's decision reaffirms that there is simply no reliable scientific evidence that Vioxx caused Mr. Garza's heart attack," Theodore V. H. Mayer, a lawyer for Merck, said in a statement.

Merck, based in Whitehouse Station, N.J., withdrew Vioxx from the market in September 2004 after research showed that the painkiller doubled the risk of heart attacks and strokes. After the recall, thousands of lawsuits were filed against Merck, which has a $4.85 billion settlement pending to end the bulk of the personal injury suits.

In an Associated Press story, Garza family attorney David Hockema said they had just read the opinion and had not decided on their next move. Possible next steps would be a motion for a rehearing before the same court of appeals or a petition to the Texas Supreme Court, he said.

"I think the decision is clearly wrong and sets an impossible burden for the plaintiff to show the offending instrument (Vioxx) was the sole cause of their injury," Hockema said.

Wednesday's ruling gives Merck 10 victories and four losses in the trials that reached verdicts, with retrials pending in a few cases.

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