Vioxx Maker Faces Punitive Damage Hearing Today Following Split Ruling

A jury in Atlantic County Superior Court in Atlantic City, N.J. ordered pharmaceutical giant Merck to pay a 77-year old user of its Vioxx drug at least $4.5 million in compensation after finding that the drug helped cause the heart attack suffered by retired insurance agent John McDarby.

At the same time, the jury rejected a similar claim by a second plaintiff. It found that the drug was not a significant cause of a heart attack suffered by 60-year old Thomas Cona and awarded no damages in that case.

Merck failed to warn both plaintiffs about the risks of taking its painkiller Vioxx, the jury determined, but the panel concluded the drug was only a factor in McDarby’s heart attack and only he should receive compensatory damages.

There will be a separate hearing today on whether Merck should be required to also pay punitive damages. New Jersey law caps punitive damages to no more than five times compensatory damages.

Merck issued a statement citing the rejection of the claim by one of the two claimants and acknowledging the compensatory damages awarded to the other but declined further comment.

“The trial is continuing into the punitive phase for the second plaintiff. Merck will present evidence it believes shows that the company submitted to the U.S. Food and Drug Administration all relevant and material information concerning Vioxx. Merck will make further statements after the jury completes its deliberations after this phase of the trial,” the company’s release stated.

Merck stopped selling Vioxx in 2004 after a clinical trial showed that the drug increased the risk of heart attacks and strokes.

Merck, based in Whitehouse Station, N.J., had argued in trial that both men had medical conditions that put them at risk for heart attacks before they began taking Vioxx.

The company faces more than 9,000 Vioxx-related lawsuits in state and federal courts. In Vioxx-related cases to date, Merck has won two and lost one and is currently engaged in a trial in Texas.