Merck Wins Appeal in VIOXX® Case
WHITEHOUSE STATION, N.J., May 14, 2008 - Merck & Co., Inc. said today a Texas appellate court overturned the April 2006 verdict of a state court jury in Starr County, Texas, in the VIOXX product liability case Garza v. Merck.
The Texas Fourth Court of Appeals reversed the jury's verdict and rendered a judgment in favor of Merck. The jury's original verdict on April 21, 2006 included $7 million in compensatory damages and $25 million in punitive damages for a total of $32 million against Merck. On Dec. 21, 2006, the punitive award was reduced to $750,000 in compliance with Texas statutory caps.
In today's unanimous opinion, Justice Sandee Bryan Marion wrote, "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. Therefore, the judgment should be reversed and a take-nothing judgment rendered in favor of Merck."
"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."
During the trial, Merck was represented by Richard L. Josephson and Travis J. Sales of Baker Botts L.L.P., Houston, Texas. Merck's lead appellate counsel is Baker Botts partner Stephen G. Tipps.
Garza v. Merck was the sixth overall VIOXX case to go to trial after the Company voluntarily removed the medicine from the market. Juries have decided in favor of the Company 12 times and in plaintiffs' favor five times. Today's decision reverses one of the five plaintiffs' verdicts and results in a decision in Merck's favor. One of the previous Merck verdicts was set aside by the court and has not been retried. Another Merck verdict was set aside and retried, leading to one of the plaintiff verdicts. There have been two unresolved mistrials.
Merck is involved in a program to resolve state and federal myocardial infarction and ischemic stroke claims filed or tolled by Nov. 9, 2007. The Garza case was excluded from the settlement program. That program is progressing in a satisfactory manner. Because of the large number of enrollments received so far, Merck is confident that the number of verified enrollments will exceed the thresholds that will obligate the Company to pay $4.85 billion into a resolution fund.
This press release contains "forward-looking statements" as that term is defined in the Private Securities Litigation Reform Act of 1995. These statements are based on management's current expectations and involve risks and uncertainties, which may cause results to differ materially from those set forth in the statements. The forward-looking statements may include statements regarding product development, product potential or financial performance. No forward-looking statement can be guaranteed and actual results may differ materially from those projected. Merck undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise. Forward-looking statements in this press release should be evaluated together with the many uncertainties that affect Merck's business, particularly those mentioned in the risk factors and cautionary statements in Item 1A of Merck's Form 10-K for the year ended Dec. 31, 2007, and in any risk factors or cautionary statements contained in the Company's periodic reports on Form 10-Q or current reports on Form 8-K, which the Company incorporates by reference.