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First Vioxx Judgment Overturned On Appeal

Judges find no evidence Vioxx caused defendant's heart attack

May 30, 2008 

Merck also said that a New Jersey appellate division has overturned the punitive damage and consumer fraud awards in the 2006 verdict in a two-plaintiff Vioxx trial involving Thomas Cona and John McDarby.

"We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death and reversed the previous decision for the plaintiff in the first Vioxx case to go to trial. In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud. Today's decisions overturn almost $40 million of damages and attorneys fees previously awarded to plaintiffs at trial," said Bruce Kuhlik, executive vice president and general counsel of Merck & Co., Inc.

In the Texas appeal, Chief Justice Adele Hedges, writing for a unanimous panel, said the court found no evidence that Ernst suffered a thrombotic cardiovascular event -- a heart attack -- triggered by a blood clot. As a result, the court said the plaintiff failed to show that ingestion of Vioxx caused her husband's death.

The jury's original verdict on Aug. 19, 2005 included $24,450,000 in compensatory damages and $229,000,000 in punitive damages for a total of $253,425,000 against Merck. On June 23, 2006, based on relevant Texas law which limits the amount of punitive damages, the punitive damage verdict of $229,000,000 was reduced to $1,650,000.

In the Cona and McDarby cases, the New Jersey Appellate Division, an intermediate appellate court, overturned the punitive damage award as well as the consumer fraud award, and let stand the compensatory damages for personal injury to McDarby. In reversing the consumer fraud verdict, the court also rejected the attorneys fees granted to the plaintiffs' attorneys.

Merck said that as a result, the court overturned more than $13 million in damages and attorneys fees. In the trial, the company argued that both of the heart attacks were caused, not by Vioxx, but by the pre-existing medical conditions of the two men. While the jury found that Vioxx did not cause Cona's heart attack, it found in favor of Mr. McDarby, awarding him both compensatory and punitive damages.

In November 2007 Merck, after vowing to contest each of the thousands of product liability lawsuits against it, agreed to settle claims over the withdrawn painkiller for $4.85 billion.

Merck withdrew Vioxx from the market in September 2004 after tests indicated the highly popular arthritis drug increased the risk of heart attack and stroke in patients taking it. More than 27,000 consumers or their family members filed suit against Merck as a result.

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