Breaking: Merck wins two more Vioxx cases on appeal

by Ted Frank on May 29, 2008

AP reports a Texas court has thrown out the infamous Ernst $26 million judgment; a New Jersey court has tossed $9 million of the judgment in McDarby. More details on Point of Law as available.

Ernst was the first Vioxx suit to go to trial. A jury awarded $253 million. Mark Lanier waited months before asking for a final judgment; at the time, I suggested that this was because he knew the case would be reversed on appeal, and did not want the bad publicity. Indeed, the appellate decision perhaps comes too late for Merck: the number of lawsuits increased from 6000 to 60000 in the months following publicity over the jury verdict, costing Merck billions of dollars in the later extortionate settlement.

With these two decisions, only three plaintiffs’ verdicts in favor of Merck remain.

Update: I still haven’t seen the McDarby decision, but an updated AP story indicates that it upheld the compensatory damages of $4.5 million, overturned the $9 million punitive damages verdict, and overturned the consumer-fraud judgment (which also saves Merck millions of dollars in plaintiffs’ attorneys’ fees).

{ 7 comments }

1 Tracy 05.29.08 at 12:26 pm

Good lord, not another Merck story. Every time you post one the crazies come out in force.

2 Benjamin Cooper 05.29.08 at 12:43 pm

As I read McDarby, the compensatory damages claims, although not the punitives claims, remain. So the jury verdict against Merck still stands.

3 Ted Frank 05.29.08 at 1:38 pm

Benjamin Cooper is correct. The original AP story failed to convey the full thrust of the opinion. I’ve corrected the post.

4 Todd Rogers 05.30.08 at 11:58 am

I heard Lanier on NPR today. His quote was (paraphrased) Appeals courts are for disputes on matters of law or procedure. In this case, the appeals court took the unprecedented (and “out of left field”) position to override a jury’s decision because they (the appeals court) didn’t like the verdict. I wonder if Lanier would sing the same tune if tables were turned? Would he be one to pursue an appeal if he didn’t like to outcome from a jury? Perhaps someone in the audience can cite such an example.

5 Deoxy 05.30.08 at 12:10 pm

“precedented”?!? He either is too ignorant of the topic to be commenting on it, or he’s lying. (Probably both, actually.)

6 Deoxy 05.30.08 at 12:11 pm

“UNprecedented” – sorry! Wow, that was a bad typo.

7 Todd Rogers 05.30.08 at 1:11 pm

Again, I paraphrased. He may not have used that actual term but as I recall it, I am inclined to believe I did hear him say it. I certainly recall the phrase regarding left field.

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