July 13, 2005
In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand
By ALEX BERENSON
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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
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
"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