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Vioxx Case Goes To Jury

Merck Recalls Vioxx
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Merck & Co. should have told doctors and consumers "the good, the bad and the ugly" about Vioxx long before pulling it from the market last year, a plaintiff's attorney said Wednesday in closing arguments in the nation's first civil trial involving the once-popular painkiller.

Mark Lanier, who represents the widow of a Texas man who died in 2001, accused the New Jersey pharmaceutical company of practicing denial and deception for the last decade, minimizing safety concerns about Vioxx to reap billions in annual profits.

"We have a right to know," Lanier said of any potentially lethal side effects. "They ought to tell us the good, the bad and the ugly."

Merck lawyer Gerry Lowry urged jurors to consider what would happen to the 100-year-old company if it knowingly created deadly drugs.

"Would that be good business? Would that make sense?" she asked.

The seven-man, five-woman panel formally received the case on Wednesday and were to begin deliberating Thursday morning. The South Texas case is the first to go to trial among more than 4,200 state and federal lawsuits.

The trial, which began July 14, has drawn national attention from pharmaceutical companies, lawyers, consumers and stock analysts as the first test of what lies ahead for the drug maker. Analysts have speculated Merck's liability could reach $18 billion.

In the Texas case, Lanier hinted to jurors Wednesday that mental anguish and loss of companionship damages for the plaintiff, Carol Ernst, could reach $229 million or more.

He said Merck reaped that amount from selling Vioxx 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 had suggested such 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, sold under the brand name Aleve.

In Texas, punitive damages are capped at twice the amount of economic damages — such as lost wages — and up to $750,000 on top of non-economic damages, such as mental anguish and loss of companionship. But the non-economic damages have no limits in this case.

Lanier asked jurors to award at least $40 million in non-economic damages and implored the panel to "be the first jury in America to say `Time out, Merck.' "

"You decide what's OK, and the drug companies will listen," Lanier said. "Merck will listen."