Merck win appeal in Texas Vioxx case

71 yearold Leonel Garza had a prior heart attack and heart bypass surgery, smoked for nearly 30 years and died of the second heart attack after taking Vioxx for less than a month.

In April 2006 a jury in Rio Grande City, Texas, awarded $32 million to his widow from Merck the manufaturers of Vioxx. The award — $7 million for compensatory damages and $25 million for punitive damages — was subsequently reduced to about $7.75 million under Texas law limiting damages.

Yesterday a three-judge panel of the Texas 4th Court of Appeals overturned the verdict, ruling in favor of Merck. The opinion was signed by Justice Sandee Bryan Marion. "Even viewing all the evidence in the light most favorable to plaintiffs, we conclude the evidence is legally insufficient to support a finding that plaintiffs negated, with reasonable certainty, Mr. Garza's preexisting heart condition as a plausible cause of his death,"

The judges stated that Garza's family did not prove his brief use of Vioxx caused two blood clots that the family's attorneys argued triggered his heart attack. The judges also concluded the family did not provide sufficient evidence to rule out his long-standing heart disease as the cause of his fatal heart attack.

"The appellate court recognized that there was insufficient evidence supporting the jury's verdict and, accordingly, rendered a final judgment in the case in favor of Merck," said Ted Mayer of Hughes, Hubbard & Reed, outside counsel for Merck. "Today's decision reaffirms that there is simply no reliable scientific evidence that Vioxx caused Leonel Garza Sr.'s heart attack."

The Garza case was excluded from the settlement program agreed by Merck who have paid US $4.85 billion into a resolution fund to resolve state and federal myocardial infarction and ischemic stroke claims filed or tolled by Nov. 9, 2007.

After the trial, a juror admitted previously borrowing more than $12,000 from Garza's widow, Felicia, an issue that Merck also raised in its appeal, this was not mentioned in the three-page appellate court decision.