Vioxx jury: Merck lied, must pay
No. 2 drugmaker vows appeal as jury awards $9 million in punitive damages related to the painkiller.
By Aaron Smith, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) - A New Jersey jury found Merck liable Tuesday of misrepresenting Vioxx to federal regulators, and ordered the drugmaker to pay $9 million in punitive damages to a man who suffered a heart attack after taking the painkiller.

The plaintiff, former Vioxx patient and heart attack survivor John McDarby of Park Ridge, N.J., was awarded $3 million in compensatory damages last week by the same jury in Atlantic City, N.J., and his wife was awarded $1.5 million. The $9 million is on top of the compensatory damages.

Merck said it would appeal the punitive and compensatory damages.

"We are disappointed in this case because we absolutely believe that our conduct was proper," said Merck's general counsel Ken Frazier, in a teleconference with reporters.

Chuck Harrell, outside counsel for Merck, said punitive damages should not have been awarded because, "We provided the FDA with all the information about Vioxx that we were required to provide."

Mark Lanier, the lawyer representing McDarby in the punitive phase of the trial, told CNNMoney.com that the verdict sends a "very loud message" not just to Merck but the entire drug industry.

"These pharmaceutical companies must tell the truth," Lanier said by telephone. "They must tell the good and the bad news, or American citizens will hold them liable."

Merck (up $0.03 to $33.88, Research), the nation's second-largest drug maker, faces nearly 10,000 lawsuits from people who blame Vioxx for their heart attacks. So far Merck has won two cases and lost one, and there was a split verdict in the case involving McDarby and another N.J. plaintiff, Thomas Cona.

Robert Gordon, McDarby's lawyer throughout the trial and who is representing about 2,000 plaintiffs in upcoming Vioxx cases, said, "This jury has told [Merck] there are more punitive damages coming down the pike and I don't think it's in their best interest to keep trying them."

Merck pulled Vioxx off the market on Sept. 30, 2004, after a study revealed increased risks of heart attacks and strokes among people taking the drug for at least 18 months.

Merck, based in Whitehouse Station, N.J., has consistently denied allegations that it deliberately misled federal regulators, doctors or patients about the risks of the drug and says that Vioxx never killed anybody.

Nevertheless, observers point out the company has credibility issues.

"The dishonesty is now coming back to hurt Merck," said Dr. Bryan Liang, a professor of health law studies at California Western School of Law.

Looking forward to future cases, Liang said that great attention will be paid to the sympathetic nature of plaintiffs. Liang noted that McDarby, who won damages in the split verdict, was wheelchair-bound, while co-plaintiff Cona, who did not win damages, was described in press reports as energetic.

"The big picture is going to depend on how the defendants are going to look, and how the plaintiff is being portrayed," said Liang.

Liang noticed that jurors stayed "well below" the punitive awards cap of $22.5 million, which is significant because in the first Vioxx trial in Texas, Lanier's plaintiff Carol Ernst was awarded damages that were tenfold the state limit.

"The jurors don't want to seem excessive," said Liang. "Everyone seemed to think that the Texas verdict was excessive, and it hurt the cause."

Merck stock edged lower after the punitive damages were announced. The stock fell sharply after last week's verdict.

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To read more about Merck and Vioxx, click here.

To see how much Merck could stand to lose, click hereTop of page

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Market indexes are shown in real time, except for the DJIA, which is delayed by two minutes. All times are ET. Disclaimer Morningstar: © 2014 Morningstar, Inc. All Rights Reserved. Disclaimer The Dow Jones IndexesSM are proprietary to and distributed by Dow Jones & Company, Inc. and have been licensed for use. All content of the Dow Jones IndexesSM © 2014 is proprietary to Dow Jones & Company, Inc. Chicago Mercantile Association. The market data is the property of Chicago Mercantile Exchange Inc. and its licensors. All rights reserved. FactSet Research Systems Inc. 2014. All rights reserved. Most stock quote data provided by BATS.