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Jury Awards $9 Million In Punitive Vioxx Damages

Trial Was First to Cover Long-Term Vioxx Users

By Mark Huffman
ConsumerAffairs.com

April 11, 2006

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An Atlantic City, New Jersey, jury has decided Merck & Company should pay $9 million in punitive damages, on top of the $4.5 million awarded a heart attack victim who blamed his health problems on the now-banned painkiller Vioxx.

Seventy-seven year old John McDarby took Vioxx for four years until his heart attack two years ago. Jurors, however, were unconvinced that Vioxx was a major factor in the heart attack of the second plaintiff, Thomas Cona.

"Merck thought that this was going to be an easy win for them, and we said this is exactly the type of person who needed to be protected from Vioxx," said Robert Gordon, McDarby's attorney.

In reaching its decision, the jury found the pharmaceutical company knowingly withheld information about potential Vioxx dangers and engaged in wanton and willful misconduct.

A week ago the same jurors awarded the plaintiff $4.5 million after determining that Merck failed to warn two of McDarby's doctors. An attorney for McDarby, in making his closing argument, urged the jurors to punish the company.

So far, Merck has won two Vioxx cases and lost two. However, hundreds more are scheduled. The McDarby-Cona trial was considered significant because it was the first to involve patients taking the drug for a long period of time.

When Merck pulled Vioxx in the fall of 2004, it was because a study had linked the painkiller to increase risk of heart attack in patients who had taken it for more than 18 months.

While the jury found that Vioxx did not play a role in Cona's heart attack, it did agree that Merck was guilty of consumer fraud, awarding $3,969 to McDarby and $45 to Cona. The jury found Merck both deceived doctors about Vioxx's cardiovascular risks, and deliberately hid information about those risks from physicians.

Gordon and Cona's lawyer, Mark Lanier, argued that Vioxx was released to the American marketplace with inadequate testing, that Merck ignored warning signs about the drug's safety, failed to alert the FDA and federal regulators of its dangers, and spent hundreds of millions of dollars aggressively marketing a drug the company knew to be unsafe.

Vioxx was first marketed in 1999, and its sales grew to $2.5 billion annually. 20 million patients took Vioxx, which was billed as a “super aspirin,” until it was recalled in September of 2004.

There are now 10,000 pending Vioxx lawsuits, and Merck has set aside $970 million to fight each one individually.

McDarby collapsed when he suffered his heart attack on April 15, 2004. He broke a hip when he fell. Gordon sought compensatory damages for McDarby for his heart attack and hip fracture.

While Merck tried to argue that McDarby, an ex-smoker, had pre-existing risk factors, such as diabetes, that made him a likely candidate for a heart attack, Gordon argued that Merck was negligent in not properly alerting prescribing physicians and patients with someone like McDarby's risk factors of what the dangers of taking Vioxx were.

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