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Texas Law Cuts $32 Million Vioxx Award to $7.75 Million

By Lynn Brezosky | December 26, 2006

A judge in a Texas widow’s lawsuit over the Merck & Co. drug Vioxx last Thursday reduced a $32 million jury award to about $7.75 million so that it conformed to state law.

A state jury in April found Merck & Co. liable for the death in 2001 of Leonel Garza, a 71-year-old man who had a fatal heart attack within a month of taking the since-withdrawn painkiller.

After the verdict was issued, the company was ordered to pay the Garza family $7 million in noneconomic compensatory damages and $25 million in punitive damages.

But Judge Alex Gabert, in a Rio Grande City courtroom, ordered the punitive damage reduced to conform to a 2003 Texas law that caps punitive damages at twice the amount of economic damages — lost pay — and up to $750,000 on top of noneconomic damages.

Because Garza was retired, the jury awarded no economic damages, so Merck was ordered to pay the most the family could receive under state law.

Whitehouse Station, N.J.-based Merck argued during the trial that Garza had a 23-year history of heart disease beginning with a quadruple bypass in 1989 and had taken Vioxx only 17 days.

But Garza’s attorneys said Garza had just been told his veins had been cleared and that a stress test showed less than a 2 percent risk of heart attack within a year.

They touted the verdict as the first case in the country where a jury found short-term usage of Vioxx to be causative in heart attacks.

Tilden Katz, a spokesman for Merck’s outside legal counsel, said the company was seeking a new trial based on “the undisclosed financial relationship” between the plaintiff and one of the jurors.

Plaintiff attorney Luis Cardenas said the plaintiffs were pleased with the judge’s decision and called Merck’s planned motion for retrial “pretty standard.”

Merck attorneys in September were granted access to bank and cell phone records they said would show an improper financial relationship between juror Jose Manuel Rios and Felicia Garza, the widow.

Rios, who earns $22,000 a year as a school janitor, testified in a post-trial deposition to borrowing up to $10,000 interest-free from Felicia Garza. He said the loans included $2,500 that was paid off just weeks before jury selection in the case.

Merck lawyers requested the deposition in June after a fellow school employee alerted the local attorney in the case to the loans.

Of the thousands of cases filed against Merck, this was the sixth to reach a verdict.

The case’s venue gave it added distinction. Rio Grande City is within a few miles of the Mexican border and is county seat of one of the poorest counties in the nation. The region is known for plaintiff-friendly juries and large judgments.

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