Vioxx Jury Adds $9 Million in Punishing Merck

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The makers of Vioxx should pay $9 million in punitive damages to an elderly man who had a heart attack while taking the painkiller, a New Jersey jury has decided. Last week, the jury awarded the man and his wife $4.5 million in compensation. Vioxx manufacturer Merck faces nearly 10,000 more individual suits over the arthritis drug.


In New Jersey today, a $9 million judgment against the drug maker Merck. The jury decided that the company should pay that much in punitive damages to a 77- year-old man. He suffered a heart attack after taking the painkiller Vioxx. Last week, jurors awarded $4.5 million dollars in compensatory damages to John McDarby and his wife.

Merck and company withdrew Vioxx from the market in 2004, after a study showed Vioxx doubled the risk of heart attack. Some 10,000 Vioxx product liability cases have been filed.

NPR's Snigdha Prakash as the story.

SNIGDHA PRAKASH: The good news for Merck is that jurors gave nine million dollars in punitive damages, not $229 million as in the first Vioxx trial last summer in Texas state court. But analysts say the bad news is that this wasn't a Texas jury. This jury was seated in New Jersey, where drug companies enjoy a home-field advantage. Many are based there. And, where state law says there are only a few circumstances in which a drug maker can be made to pay punitive damages, if the medicine has been approved by the Food and Drug Administration.

For the first time, a New Jersey jury decided today that a drug maker deserved punishment under that law.

MARK LANIER: I've got a big grin on my face, from ear to ear.

That's lawyer Mark Lanier, who won punitive damages against Merck last summer in Texas for plaintiff Carol Ernst, and today for plaintiff John McDarby, in New Jersey.

Lanier was heading back home to Texas when NPR reached him on his cell phone.

LANIER: Merck said they couldn't be beat in their backyard. Merck said that the punitive finding in Ernst was a fluke, a runaway jury, an uneducated jury, and I'm smiling.

PRAKASH: Five Vioxx cases have gone before juries. This was only the second loss for Merck, and yet, Howard Erichson, a professor of law at the Seton Hall Law School says it's a significant loss, because in mass tort litigation, such as the Vioxx lawsuits, the early trials set the stage for the entire litigation.

HOWARD ERICHSON: And what's happened now is Merck has shown that it's vulnerable to significant losses. If there's a series of verdicts and the company has to start paying out significant damages to individual plaintiffs, the company has to think about whether it would make more sense to try to settle the cases, either through some global resolution of the litigation or piecemeal.

PRAKASH: This afternoon, Merck's general counsel, Kenneth Frazier, told reporters and analysts in a teleconference that the company was disappointed in the verdict and believed its actions had been unfairly portrayed. He stressed that many things have been going Merck's way, including a decision by the same New Jersey jury last week against another Vioxx plaintiff, Thomas Cona. They found he hadn't proven that his heart attack was caused by Vioxx. Frazier said Merck's strategy won't change because of today's punitive award.

KENNETH FRAZIER: We are committed to addressing these cases, one by one, over the coming years. The split decision in this case and our previous victories reaffirm our strategy of defending the litigation on a case by case basis, which is what we've been doing from the start. As we've said in the past, we have both the resolve and the resources to continue our efforts.

PRAKASH: Vioxx plaintiffs and Merck will square off in state courts in California, New Jersey and Florida over coming months and in several federal trials in New Orleans.

Snigdha Prakash, NPR News, Washington.

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