A jury in Atlantic City has decided that Merck & Co’s Vioxx contributed to a heart attack suffered by one man, saying he should be awarded damages of $4.5 million, but rejected similar claims made by a second plaintiff.
The jurors will continue their deliberations today on the punitive damages to be imposed on Merck, after they agreed Vioxx (rofecoxib) was a factor in the heart attack suffered by 77-year-old John McDarby, and that the drugmaker had failed to warn of the risks of the drug.
To win punitive damages, which could be many times the $4.5 million awarded to McDarby, attorneys will have to prove that Merck intentionally misled the US Food and Drug Administration.
In a positive development for Merck, the jury also said Vioxx played no part in a heart attack suffered by McDarby’s co-plaintiff, 60-year-old Thomas Cona.
Merck pulled Vioxx off the market in September 2004 after a study showed the COX-2 inhibitor doubled the risk of heart attacks and strokes when taken for 18 months or more. Cona claimed to have taken the drug for 22 months, while McDarby said he was on it for around four years.
Although these were the first injury cases to reach the courts involving long-term users of the drug, on balance observers had expected Merck to win, because the plaintiffs had multiple risks factors that could have predisposed them to a heart attack, including underlying cardiovascular disease.
Merck would not comment on the case as the second phase of the trial got underway, other than to say it was disappointed by the outcome. But the McDarby case could hike the number of claims it faces – currently at around 10,000 – because lawyers may now elect to pursue cases they had previously advised against because their clients had risk factors for a heart attack.
It brings to an end a winning streak for the drugmaker in Vioxx injury cases, having won suits brought in Atlantic City and New Orleans, after earlier losing a Texas case in which the plaintiff was awarded $253 million, capped at $26 million under state laws.
In a secondary ruling, the jury also decided that Merck had committed consumer fraud, by misleading doctors abut the cardiovascular risks of Vioxx and concealing information about those risks. McDarby was awarded $3,969 to compensate for medication costs as a result, and Cona received $45, which will be tripled under New Jersey law.
– Meanwhile, a federal judge dismissed another lawsuit brought by a chronic user of the drug from New Orleans, Ellis Maximo Diaz, at the request of the plaintiff’s lawyer. The dismissal came about in part because Judge Eldon Fallon would not agree to postpone the trial, scheduled to take place on June 12, in order to allow more time to prepare the case.
