HOUSTON — Carol Ernst says Merck & Co. knew its pain reliever Vioxx was potentially deadly when it sold the drug to her husband, and today she is expected to become the first in a long line of plaintiffs to take the giant pharmaceutical company to trial.
Robert Ernst, an exercise fanatic who took Vioxx daily for chronic hand pain, died suddenly in his sleep four years ago. He was 59.
"I see a company that knew they had a problem with this medication long before they took it off the market," said Carol Ernst, 60. "They were more concerned with being able to have a new blockbuster medication and weren't concerned about patient safety at the time."
Merck pulled Vioxx off the market in September after a clinical trial noted that patients who had been taking daily doses of the drug for more than 18 months had a greater chance of heart attack or stroke than those who hadn't.
Vioxx was an enormous moneymaker for the company, which is based in Whitehouse Station, N.J. Worldwide sales in 2003 totaled $2.5 billion, with about 20 million patients taking it by the time sales of the drug were halted.
Merck, which has $16 billion in cash and equivalents, says it intends to fight every Vioxx case, including more than 3,800 individual plaintiffs and 118 potential class-action lawsuits pending in state and federal courts. On June 30, Texas Atty. Gen. Greg Abbott joined the line of litigants, alleging that Merck misrepresented Vioxx in a fraudulent scheme that cost the Texas Medicaid program $56 million in pharmacist reimbursements.
But Ernst -- barring a last-minute delay -- will be the first to go to trial.
A loss for Merck could encourage other plaintiffs. A win could put a damper on other suits.
"One case doesn't mean that much, but because Ernst is the first case ... it will have significance," said Barbara A. Ryan, an analyst at Deutsche Bank who follows the pharmaceutical industry. "And the market will also be able to judge Merck's defense in this litigation."
Early court battles are especially meaningful because defendants in medical product-liability cases are moving away from so-called global settlements that cover many plaintiffs, choosing to battle cases individually, said Deborah R. Hensler, a law professor at Stanford University.
So, from the start, Merck needs to discourage plaintiffs from pursuing their cases.
"They need to make the mass litigation go away," Hensler said.
