Jury splits verdict in two N.J. Vioxx suits

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ATLANTIC CITY, N.J. (AP) – A jury found Merck & Co. liable on Wednesday for one of two former Vioxx users’ heart attacks in a split verdict that awarded $4.5 million in damages to one of the plaintiffs.

The state jury found the company failed to adequately warn both men about the risk factors linking the now-withdrawn painkiller to heart attacks and strokes, but said the drug was only a factor in one of the men’s illnesses.

Jurors ruled that only John McDarby, 77, a retired insurance agent from Park Ridge, should receive compensation. McDarby was awarded $3 million for pain and suffering and his wife was awarded $1.5 million. He did not comment after the verdict.

The trial also included the case of Thomas Cona, a 60-year-old businessman from Cherry Hill who was stricken on a golf course after what he said was nearly two years of Vioxx use. The jury said he should receive $45 to compensate him for the cost of his medication. Cona declined comment after the verdict.

The verdict is the second court loss for Merck, against two victories, one in a retrial. The trial was the first dealing with plaintiffs who blamed illnesses on long-term use of the painkiller.

McDarby lawyer Robert Gordon called the verdict, which followed less than two days of deliberations, “a victory for 100,000 Americans who had heart attacks from Vioxx.”

“This is a victory for the tens of thousands of doctors who were lied to by Merck about the dangers of Vioxx,” Gordon added.

McDarby, a diabetic who took Vioxx for four years, suffered his heart attack in his living room and broke his hip as a result, triggering a health slide that has left him using a wheelchair and unable to care for himself, according to his attorneys.

Merck, which faces about 9,650 suits in state and federal courts over Vioxx, said it will continue to fight each one.

“Today’s split verdict is a disappointment to the thousands of employees of Merck here in New Jersey and across the country,” Merck spokesman Chuck Harrell said. “At this point the jury has spoken, but this split ruling at least suggests that we need to look at these cases on an individual basis as we have done in the past.”

The jury was expected to return to court Thursday to decide whether the company will face punitive damages. The judge told jurors not to comment until after the entire trial ends.

Compensatory damages are given to cover a plaintiff’s actual financial losses, such as medical treatment costs and lost income. Punitive damages penalize a defendant for bad conduct.

Merck shares dropped in after-hours trading Wednesday evening, falling $1.08, or 3 percent. The stock rose 51 cents, or 1.4 percent, to $35.99 in regular trading on the New York Stock Exchange, a day after Merck had raised its forecast for first-quarter profit about 15 percent.

Mark Lanier, Cona’s attorney, attributed the jury’s finding that Vioxx didn’t cause Cona’s heart attack to the discrepancy in his client’s prescription history: Cona said he took Vioxx for 22 months before being stricken, but his medical records reflected only seven months of use.

“My client was never in it for the money. He was in it for the truth,” Lanier said.

The verdict capped a monthlong trial in which lawyers for Cona and McDarby laid out now-familiar accusations that Merck rushed the drug to market in a losing battle against competitor Celebrex and actively ignored evidence it was causing cardiovascular complications.

Like jurors in five Vioxx-related trials before it, the jury saw dozens of e-mails, internal Merck documents and safety study reports and heard testimony from a parade of cardiology experts, academics and Merck executives.

Plaintiffs’ lawyers said Cona and McDarby wouldn’t have used the drug for their arthritis pain if Merck – faced with clinical studies suggesting Vioxx was causing heart attacks and strokes – had not persuaded the Food and Drug Administration to dilute a new label warning in April 2002.

Merck said it thoroughly tested the drug before introducing Vioxx in 1999. It was a huge hit with older consumers because of its efficiency as a pain reliever and its lack of gastrointestinal side effects that were typical of some arthritis pain relievers.

At its peak, Vioxx sold $2.5 billion in 2003.

But Merck pulled it from the market in September 2004 after a clinical study showed that people who took it longer than 18 months faced twice the risk of suffering heart attacks and strokes.

Independent pharmaceuticals analyst Hemant Shah of HKS & Co. said the split decision was “clearly a disappointment” for Merck.

“I think the issue of Vioxx and potential liability is not going to be decided by this case,” Shah said, adding he expects some wins and some losses for Merck over the course of the year and trials continuing over the next several years.

It was the second Vioxx trial in New Jersey, where more than 5,000 suits are pending – all before state Superior Court Judge Carol Higbee.

“This is death by a thousand cuts,” health care analyst Steve Brozak of WBB Securities LLC said of the verdicts. “Even if they win the preponderance of cases, they are still in the unenviable position of having to defend against literally thousands of cases.”

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