Not only congresspeople

Big Pharma's buddies
In throwing out a $26.1 million verdict, Houston appellate court usurps role of trial judge and jury


Copyright 2008 Houston Chronicle

Carol Ernst, whose 59-year-old husband Bob died of heart problems after taking the drug Vioxx for nine months, must be wondering what it takes to win a verdict in a damages suit these days.

After Ernst was awarded a $253 million dollar judgment against Vioxx manufacturer Merck & Co. by an Angleton jury in 2005, the award was reduced to $26.1 million by the trial judge in accordance with tort reform restrictions passed by the state Legislature. On Thursday, a three-judge appellate court panel in Houston found that the expert testimony presented in the trial on behalf of the plaintiff did not prove Vioxx caused his death.

The judgment was overturned, and Ernst will receive nothing. She and her lawyer, Mark Lanier, intend to appeal.

Vioxx was taken off the market in 2004 after studies linked the anti-inflammatory drug to heightened heart attack rates in users. 14th Court of Appeals Chief Justice Adele Hedges wrote the opinion acknowledging the validity of those studies, but finding that Ernst's expert testimony amounted to conjecture and speculation rather than proof of his cause of death.

After the ruling, Ernst told Chronicle reporter Mary Flood, "I trusted if you go to court and tell the truth and the facts are on your side, the justice system will support you." More and more Texans are learning that trust is misplaced in a court system inclined at the higher levels to protect the interests of business over consumers'.

The same day that the Houston court ruled, a New Jersey appeals court reduced by $13 million a penalty assessed Merck by a jury in a Vioxx case, leaving $4.5 million in compensatory damages. Also, in a suit similar to Ernst's, a San Antonio appeals court tossed out a $32 million jury judgment won by another widow against Merck last month.

In announcing an appeal in the Ernst case, attorney Lanier stated, "activist judges are protecting corporate executives and stripping away the rights of widows and every other victim of corporate misconduct.

This decision was handed down by a group of judges who regularly accept campaign contributions from law firms representing corporations that appear in their courts.
Given its recent string of court victories, Merck officials are probably kicking themselves for approving a $4.85 billion settlement with nearly 50,000 Vioxx litigants that will award each plaintiff about $100,000.

Rather than encouraging Merck to do what's right, the 14th Court's decision in the case risks emboldening the company to rely on judicial friends in high places to overrule juries and send widows home empty-handed.