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Vioxx: $229 million in punitives

Just in: the Texas jury handling the nation's first Vioxx products liability case, previously discussed at length on this site, issued a verdict holding the drug's manufacturer, Merck, liable for $229 million in Robert Ernst's 2001 death. How did they reach that figure? Just a guess:

Carol Ernst's lawyer, Mark Lanier, asked jurors to award her at least $40 million in damages. He suggested during closing arguments that her mental anguish and loss of companionship damages could reach $229 million or more. Mr. Lanier said Merck reaped that amount from Vioxx sales in the four months leading to the February 2002 addition of cardiovascular warnings on the drug's label. The U.S. Food and Drug Administration suggested the changes in October 2001 in light of a 2000 study that showed Vioxx users suffered five times as many heart attacks as those who took the older painkiller, naproxen.

So, in essence, the jury expropriated Merck's Vioxx sales from Oct. 2001 through Feb. 2002. Though the verdict seems not to have been structured as a punitive award (Texas has a strict limitation on punitives at twice economic damages and $750,000 above noneconomic awards), it sure sounds like one.

And thousands of other Vioxx suits are pending--for which this expropriative penalty won't have any preclusive effect.

So, even as Ted yesterday brought us the good news from Avery, we have yet more evidence that in the wild world of torts, the good guys far too often lose...



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.