A state court jury in South Texas dealt Merck another setback yesterday afternoon, awarding $32 million in damages to the family of Leonel Garza, a 71-year-old retiree who died of a heart attack in 2001 after briefly taking the painkiller Vioxx.
Texas laws that cap punitive damages will automatically reduce the award to $7.75 million. Still, the verdict is a major disappointment for Merck, because Mr. Garza had a long history of heart disease, including a previous heart attack, and took Vioxx for less than a month before he died.
Merck has now lost three of the five lawsuits to reach juries, and each of the losses has involved multimillion-dollar awards for the plaintiffs.
The verdict, by a vote of 10 to 2, was announced at 2:30 p.m. local time in state court in Rio Grande City, a South Texas town of 13,000 near the Mexican border. Jurors deliberated for about eight hours over two days.
The case began in January, but the trial proceeded intermittently, with jurors hearing only four days of testimony every month, because the judge overseeing the suit is responsible for cases in several counties.
"We're really pleased," said Joe Escobedo, the lead lawyer for the Garza family. "We thought that Mr. Garza's case was a very, very strong case."
Lawyers for Merck denounced the verdict and said they expected it would be overturned on appeal. Juries in South Texas have a history of returning large verdicts for local plaintiffs against companies with headquarters out of state, said Richard L. Josephson of the firm of Baker Botts, who was the lead lawyer for Merck's defense team in the case.
Making the case even more difficult for Merck, Mr. Garza's family was well known in Starr County, where he had lived and where the lawsuit was heard, Mr. Josephson said.
"This is a one of a kind; this is an aberration," he said. "If I had tried this case in Houston, where I live, I think we would have won it 19 out of 20 times."
Mr. Josephson said that Judge Alex W. Gabert, who oversaw the suit, should have dismissed the case before it reached a jury because lawyers for Mr. Garza's family had no scientific evidence that Vioxx had caused Mr. Garza's heart attack.
"There really isn't any good science to indicate that Vioxx can cause a heart attack in less than 30 days," Mr. Josephson said. "It shouldn't have been submitted to the jury."
In addition to his heart attack in 1981, Mr. Garza underwent a quadruple bypass in 1985, and was a smoker who was also overweight and had high blood pressure.
Mr. Garza's family claimed that he had taken Vioxx for 25 days before his heart attack, although medical records confirmed only 7 days of use.
Mr. Escobedo said that Vioxx was especially dangerous to Mr. Garza because of his other risk factors and that he should never have been prescribed the drug.
"Mr. Garza was the last person in the world that should have been taking Vioxx," said Mr. Escobedo, who told the jury that Merck had known since 2000 that the drug posed heart risks but continued selling it for four years.
The verdict highlights the risks that Merck faces as the number of lawsuits over Vioxx continues to grow.
Shares of Merck fell about 1 percent after the verdict was announced yesterday, and closed down 26 cents, at $34.74.
About 20 million Americans took Vioxx from 1999 to 2004, when Merck withdrew the drug after a clinical trial showed that it increased the risk of heart attacks and strokes compared with a placebo. Earlier clinical trials had also shown that Vioxx appeared to be much riskier to the heart than naproxen, an older painkiller.
In its earnings report this week, Merck disclosed that it faced 11,500 product-liability lawsuits over Vioxx, with 23,300 separate plaintiffs, as well as 190 class-action lawsuits. Merck has set aside almost $1 billion to defend itself from the lawsuits, but the company has not yet given any estimate of what it believes its total liability in the cases will be.
In each of the three cases Merck has lost, juries have awarded verdicts of more than $10 million, and have ordered Merck to pay punitive damages, which are supposed to be awarded only in cases of egregious corporate conduct.
Merck has said that it plans to defend Vioxx lawsuits case by case, and a month ago that strategy appeared to be working. After losing a $253.5 million verdict in the first case to reach trial, Merck won the next two.
But recently the tide has seemed to turn abruptly against the company, as its lawyers struggle to explain a raft of documents that show its scientists were concerned about Vioxx's heart risks several years before Merck stopped selling the drug in 2004.
Merck lost a Vioxx suit this month in New Jersey, where the jury awarded a 77-year-old heart attack survivor and his wife $13.5 million in damages. That man had taken Vioxx for four years.
Kenneth L. Frazier, Merck's general counsel, said in a conference call after the verdict yesterday that he was pleased with the performance of Merck's defense lawyers. Merck never expected to win every case at trial and believes it has strong ground for appeal, he said.
"The realities of the world are that jury cases have uncertain outcomes," he said.
