RIO GRANDE CITY, Texas – A state judge yesterday refused a plaintiff’s motion to lift a Texas cap on jury awards for punitive damages in a lawsuit over a once-popular painkiller by Merck & Company, Vioxx.

State District Judge Alex Gabert ruled in the lawsuit brought by a family of a retired 71-year-old man seeking $1 billion – one of nearly 10,000 suits alleging the once-popular painkiller caused heart attacks.

Texas caps punitive damages at twice the amount of economic damages awarded, and at $750,000 in addition to any non-economic damages awarded such as those for pain and suffering.

A Merck attorney, Richard Josephson, said the jury could award no more than $750,000 in punitive damages because the family of Leonel Garza did not claim economic loss. Garza died of a heart attack within a month of taking Vioxx for arm pain in 2001.

Closing arguments in the case had been scheduled to begin yesterday, but were delayed a day so a juror could attend a funeral.

Of the five cases decided in the country so far, Merck has won three and lost two. In the two losses, the New Jersey-based pharmaceutical company was ordered to pay one plaintiff $253.4 million and the other $13.5 million.

Merck lawyers argue that the attack was the end result of 23 years of heart disease and that Garza took the drug for only a week, not long enough to cause a heart attack.

Family attorneys counter that Garza’s veins had been cleared and that a stress test shortly before he died showed less than a 2% risk of a fatal heart attack within a year. They said he had taken the drug for almost a month.

The case in this small city on the Mexican border went to trial on January 25, but the judge’s schedule allowed only one week of testimony each month.

The final plaintiff witness was Garza’s wife, Felicia, who testified that cardiologists gave her husband samples of the drug in brown vials. A doctor said his office only distributed samples in blister packs.

Dr. Michael Evans testified he advised Leonel Garza to quit smoking and to lose weight and said he was concerned about Garza’s heart condition because of his past.

Vioxx was pulled from the market in September 2004, when a study showed it could double risk of heart attack or stroke if taken more than 18 months.

Plaintiffs in this and other cases say Merck executives knew by 2000 to pull the drug because of its cardiovascular risks, but kept quiet because the drug was so profitable.

A Garza attorney, Joe Escobedo, said evidence also showed Merck targeted people like Garza with ads featuring the elderly.

Earlier this month, a jury in Atlantic City, N.J., awarded $9 million in punitive damages and $4.5 million in compensatory damages to a 77-year-old heart attack victim, John McDarby, and his wife, Irma.

The jury rejected the claim of another plaintiff in the case, who had taken the drug for 22 months before he had a heart attack.

That trial was the first involving people alleging use of 18 months or more.

On August 19, a Texas jury found Merck liable for the death of 59-year-old marathon runner Robert Ernst, who had taken the drug for eight months. They awarded his widow $253 million, but Texas caps on punitive damages reduces the amount to about $26 million.

On November 3, a New Jersey jury said Merck was not responsible for the death of a postal worker, Frederick “Mike” Humeston, who had a heart attack after taking the drug for about two months.

In another case, a mistrial was declared because the jury was unable to reach a verdict in federal court in Houston. That case was retried in federal court in New Orleans and Merck was found not responsible for the death of Richard “Dicky” Irvin, who died after taking Vioxx for about a month.