July 13, 2005

In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand

http://www.nytimes.com/2005/07/13/business/13vioxx.html?th=&emc=th&pagewanted=print  (must register to view original article)

HOUSTON, July 12 - Carol Ernst's sadness is evident when she speaks of her husband. Ms. Ernst, 60, is the widow of Robert Ernst, who died in his bed on May 6, 2001, in Keene, Tex., a town about 25 miles south of Fort Worth. On Thursday, opening arguments will begin in a lawsuit she and Mr. Ernst's two children have brought against Merck, the giant drug maker, claiming that Merck's painkiller Vioxx caused Mr. Ernst's heart to stop.

The Ernsts were married for less than a year before Mr. Ernst died. But as W. Mark Lanier, the lawyer representing the Ernst family, seeks to convince a jury that Merck should be punished for Mr. Ernst's death, he is counting on Ms. Ernst to be among his most effective weapons in proving that Vioxx was dangerous.

Mr. Lanier is also hoping that Ms. Ernst's testimony illustrates how the unexpected loss of Mr. Ernst created a void that has monetary value beyond lost earnings.

"Bob was Merck's collateral damage," Ms. Ernst said in an interview Sunday in Mr. Lanier's office. "They knew there were going to be Bobs, but they didn't care. And that makes it more difficult to deal with."

Thousands of people are now suing the company, claiming that Vioxx caused their heart attacks or strokes, and that Merck knew of the drug's dangers years before pulling it from the market last September. Ernst v. Merck is the first case to reach trial.

The trial, which is expected to last nearly a month, will feature complex scientific arguments about causation, statistics and the way that Vioxx increases the propensity of blood to clot. Merck has maintained that it was only last fall, when a clinical test showed that Vioxx increased heart risks, that the company had clear proof the drug was dangerous. A county medical examiner found that Mr. Ernst died of an arrhythmia, or irregular heartbeat. Merck says that Vioxx has not been linked to arrhythmias.

"A sudden death is a tragedy for any family, but we believe the evidence we will present to the jury will show that Vioxx did not cause Mr. Ernst's unfortunate death," said Jonathan B. Skidmore, a member of the trial team and a lawyer for Fulbright & Jaworski, one of the firms representing Merck.

Even if a jury decided the company was responsible for Mr. Ernst's death, Merck would probably not have to pay large monetary damages because he had a relatively low-paying job at Wal-Mart and was 59 years old when he died.

That is what could make Ms. Ernst's testimony so crucial, if the jury decides that Vioxx was responsible for his death and she persuades the jury to award significant damages for losses beyond his lost salary.

To win a large financial award, Mr. Lanier will need to show that Mr. Ernst's death has left his widow bereft of emotional support and companionship. Ms. Ernst's testimony may also persuade the jury to award large damages for the pain and suffering Mr. Ernst felt in the minutes before he died.

But, like many plaintiffs in personal-injury cases, Ms. Ernst says that this trial is not about money for her. She simply wants to hold Merck accountable for its actions, she said in the interview.

"It's very difficult to accept that you're just a statistic for them, that this is something they knew was going to happen," she said. Ms. Ernst is a quiet woman who wears glasses, has short grayish hair, and chooses her words carefully. She has worked for most of her life at hospitals and hospices, and now works at a nursing home in her hometown.

And, by her account, Robert Ernst changed her life - and her life has not been the same since he died. She met him in January 1997, after her daughter Kendra introduced them at a fitness center where he worked as an instructor. Initially, Mr. Ernst did not make much of an impression on her, she said.

But she had made an impression on him; he immediately wanted to ask her out. Finally, at Kendra's urging, she agreed. Their first date was at the local Olive Garden restaurant and they got along immediately.

Three months later, Mr. Ernst asked her to marry him, although they waited three years to marry, until Kendra graduated from college, she said. For Ms. Ernst, who had been divorced in the mid-1980's and raised four children on her own, the relationship came as a revelation.

Every day, Mr. Ernst found new ways to surprise her, she said. They traveled to the Albuquerque International Balloon Fiesta and slept in a tent for 10 days. "We almost froze to death, but we had fun," she said. "The minute the sun was up, he was ready to go for the day."

They volunteered to help build houses for Habitat for Humanity. And they worked out together. After smoking and drinking heavily in his 20's and 30's, Mr. Ernst had become an exercise fanatic in the two decades before he died, Ms. Ernst said.

"He just decided that I'm huffing and puffing, and I'm heavy and I need to change," she said. By the late 1990's, he had become a marathon runner and a triathlete, although he was not particularly fast.

"You could look at the bottom of his age group, and go up, and find him pretty quick," she said.

In May 2000, they married. In November, Mr. Ernst visited his doctor and complained of pain in his hands. He was prescribed Vioxx and took 25 milligrams a day for the next six months. On May 6, 2001, the night that Mr. Ernst died, he took her to the same Olive Garden they had visited on their first date. On his way home, he complained that his heart rate seemed very slow, she said, but the feeling passed.

They went to bed around 9:30 p.m., and she fell asleep immediately. About an hour later, she woke up.

"I thought I heard him snoring," she said. "But when I woke up more, I realized it wasn't snoring. It's what's called agonal breathing, those last few breaths." She called 911, but after her career in and around hospitals, she knew her husband was in deep trouble. By 11:15, he was pronounced dead at a local hospital.

Over the next months, Ms. Ernst sought to understand why her seemingly healthy and fit husband had died suddenly. She reviewed his autopsy and checked the Internet for information about Vioxx, which she suspected might be a factor in his death. And she contacted a lawyer who referred her case to Mr. Lanier.

But her husband's death opened a wound that four years later has hardly begun to heal, she said. She has been treated for depression, she said, and last year quit her job as a social worker at a nursing home. Now she is working part time again, but she feels no better, she said.

Lisa Blue, a partner at Baron & Budd who is working with Mr. Lanier and will question Ms. Ernst in the courtroom, said she expected jurors would connect to Ms. Ernst's story, even though the Ernsts were married less than a year.

"Everybody expects when they get married to spend a long life together," she said. "When you meet her, you can tell after five minutes that she's totally devastated."