MELISSA BLOCK, Host:
A jury in New Jersey State Court has found Merck & Co. liable for the heart attack of one of two former Vioxx users. The split verdict awarded $4.5 million to the winning plaintiff. NPR's Snigdha Prakash joins us to discuss the verdict, and Snigdha, these were two users, two users of Vioxx, two heart attacks, both of the men lived. The jury found only for one of them. Explain what happened here.
SIGDHA PRAKASH: Melissa, the case involved, or rather the trial involved two plaintiffs, John McDarby, who's 77, and Thomas Cona who's 60. They're both New Jersey residents. And the jury decided in both cases that Merck had failed to adequately warn about the association between Vioxx and serious cardiovascular events. They also found that under New Jersey's Consumer Fraud Law, Merck had misrepresented Vioxx's risks in its marketing to physicians, and had intentionally, this is the language, intentionally suppressed concealed and omitted material information about Vioxx's risks in marketing to physicians.
But, the jury said, that Vioxx was responsible only for McDarby's heart attack, not Cona's. Cona said he'd taken the drug for 22 months, but he could only produce prescriptions for seven months.
BLOCK: And they awarded compensatory damages to Mr. McDarby, but the jury still has work to do here.
PRAKASH: That's right. They've given McDarby four and a half million dollars in compensatory damages. Tomorrow the jury will return to court to decide if Merck should face punitive damages as well. Punitive damages are where the really big money comes in. That's where juries send a message to a company that they think companies are doing wrong. Merck says it'll present evidence that shows that the company submitted all the information it should have to its regulator, the Food and Drug Administration. The plaintiffs say they will call the former CEO of Merck, Ray Gilmartin, to the stand.
BLOCK: Now, Snigdha, this is the fourth Vioxx case to go to trial, and Merck has won two out of the last three. Was there something different about this one?
PRAKASH: Melissa, these are the first cases that involve long-term use of Vioxx. And that's important because Merck concedes that Vioxx can be risky after 18 months of continuous use. In fact, it was a scientific study that showed Merck was risky after 18 months that caused, I'm sorry, Vioxx was risky after 18 months, that cased Merck to pull the drug in 2004.
Today's win for one plaintiff shows that plaintiffs who used Vioxx long-term do have a better chance in court than those who used it short-term. Even if they have many different risk factors for heart attacks. So John McDarby, who's 77 and had a heart attack a couple of years ago, was elderly, he was a man, he had diabetes, and he had clogged arteries.
So in this case the jury decided that Vioxx, nonetheless, was responsible for his, or a contributing cause for his heart attack. This case also shows that plaintiffs can win even on Merck's home turf, New Jersey. And that's important to both sides because more than half of the cases against Merck are in New Jersey and under this one judge, Carol Higbee, Merck faces close to 10 thousand individual product liability cases.
BLOCK: Tell us more about, about one of the plaintiffs' attorneys in this case. Mark Lanier, who also won the case against Merck in Texas.
PRAKASH: Right, well Mark Lanier is different from other plaintiffs' lawyers, and he and many would say that he is better than many plaintiffs' lawyers. The most obvious difference between Lanier and, and the other plaintiffs' lawyers who have tried cases, Vioxx cases before, is that Lanier knows how to tell a story. And Lanier knows how to get the jury to listen when he's telling the story. I'll just give you on example, in the closing arguments he had borrowed from the TV hit series Desperate Housewives. Except his story, his TV series was called Desperate Executives.
He told a story of Merck's development, marketing, and eventual withdraw of Vioxx. And it was a story of a company that he said was desperate for a bestselling drug, that learns the drug has problems, keeps them from the FDA and doctors and patients, and covers up the evidence until the game is up and has to pull the drug. So Lanier knows how to connect with a jury. He's very, very comfortable in the courtroom.
The irony here is that Lanier's plaintiff, Thomas Cona is the one who didn't get any money in this case, but Lanier was the one who laid out the arguments for Merck's failure to warn for both plaintiffs.
BLOCK: NPR's Snigdha Prakash talking about the verdict in New Jersey state court today where Merck & Co. was found liable for the heart attack of one of two former Vioxx users. Snigdha, thanks very much.
PRAKASH: Thank you, Melissa.
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