Healthy Skepticism Library item: 4394

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Publication type: news

Merck To Appeal Punitive And Compensatory Verdicts In New Jersey VIOXX® Product Liability Case
Medical News Today 2006 Apr 17
http://www.medicalnewstoday.com/medicalnews.php?newsid=41686

Keywords:
Vioxx Merck

Notes:

Ralph Faggotter’s comments:

The balance of jury verdicts in Vioxx cases is starting to tip towards the plantiffs.

How will the lawyers and the authorities react if this trend continues over the next few cases?

Full text:

Merck To Appeal Punitive And Compensatory Verdicts In New Jersey VIOXX® Product Liability Case

Main Category: Medical Malpractice/Litigation News
Article Date: 17 Apr 2006 – 0:00am (PDT)

Merck & Co., Inc. today said it was disappointed that a state court jury in New Jersey awarded punitive damages to a New Jersey resident who claimed that his long-term use of VIOXX contributed to his heart attack. The Company said it will appeal the punitive verdict, as well as Wednesday’s split verdict awarding compensatory damages to one of two long-term users of VIOXX.

“Merck’s actions were proper and did not, in any way, call for this award as defined by New Jersey law,” said Chuck Harrell of Butler, Snow, O’Mara, Stevens & Cannada, a member of Merck’s defense team. “The evidence was clear that we provided the U.S. Food and Drug Administration with the information about VIOXX that we were required to provide. And, under New Jersey law, that means punitive damages should not have been awarded.”

“The jury heard irrelevant and prejudicial information from the plaintiffs’ attorneys about Merck and an appeal will be our next step,” said Kenneth C. Frazier, senior vice president and general counsel of Merck. “The evidence is that Merck acted ethically and in a responsible manner – from researching VIOXX prior to approval in clinical trials involving almost 10,000 patients – to monitoring and studying the medicine while it was on the market – to voluntarily withdrawing the medicine when we did.”

Notwithstanding today’s award, the Company said it is pleased that the jury found VIOXX was not a substantial contributing factor in the heart attack of Thomas Cona, who had claimed he took the medicine for more than 18 months, and thereby rejected Mr. Cona’s failure to warn claim.

Testimony during the trial showed that both plaintiffs, Thomas Cona and John McDarby, had several factors that increased their risk or contributed to their heart attacks.

“We continue to believe that the heart attacks in both these cases were caused by the pre-existing medical conditions of these two men, and not VIOXX,” added Harrell. “Proving that VIOXX was a substantial contributing factor for someone’s heart attack is an important element in these lawsuits.”

Merck also said it will appeal those portions of the verdict that found the Company violated the state consumer statute with respect to both plaintiffs.

Merck is examining various bases for appeal, which include:

— Improper restrictions on Merck’s ability to present relevant evidence to the jury, including orders that:
— prevented Merck regulatory experts from talking about FDA rules and Merck’s compliance with FDA regulatory requirements;
— limited Merck’s ability to discuss the FDA’s most recent findings;
— forbade Merck witnesses to state that they personally used VIOXX in the face of false allegations that they believed the medicine was unsafe;
— stopped witnesses from testifying about scientific studies performed by Merck regarding the cardiovascular safety of VIOXX;

— Allowing unsubstantiated conclusions that were irrelevant and/or inflammatory to be presented to the jury by plaintiff witnesses.

— Allowing opinion testimony to be given to the jury by witnesses lacking subject matter expertise.

— Allowing opinion testimony that was not based on a reliable scientific basis as required by law.

In the two-plaintiff case, Mr. Cona alleged he took VIOXX for approximately 22 months prior to June 9, 2003, when he suffered a heart attack at the age of 57. Mr. McDarby suffered a heart attack at the age of 75. Mr. McDarby was originally admitted to the hospital on April 15, 2004, for a broken hip following a fall at home.

“This split verdict reaffirms our commitment to defending each case on a case-by-case basis,” added Frazier. “Merck is in this for the long term.”

Outside of the split verdict in this case, Merck has only lost one case. In February, jurors in the first federal case, Plunkett v. Merck, rejected claims that VIOXX caused the heart attack of a Florida man. In November, jurors in New Jersey ruled in favor of Merck in Humeston v. Merck, finding that the company acted responsibly in providing information to the medical community. Merck intends to appeal last August’s plaintiff verdict in a Texas state court in Ernst v. Merck, which is the only case it had previously lost.

About Merck

Merck & Co., Inc. is a global research-driven pharmaceutical company dedicated to putting patients first. Established in 1891, Merck currently discovers, develops, manufactures and markets vaccines and medicines to address unmet medical needs. The Company devotes extensive efforts to increase access to medicines through far-reaching programs that not only donate Merck medicines but help deliver them to the people who need them. Merck also publishes unbiased health information as a not-for-profit service. For more information, visit http://www.merck.com.

Forward-Looking Statement

This press release contains “forward-looking statements” as that term is defined in the Private Securities Litigation Reform Act of 1995. These statements are based on management’s current expectations and involve risks and uncertainties, which may cause results to differ materially from those set forth in the statements. The forward-looking statements may include statements regarding product development, product potential or financial performance. No forward-looking statement can be guaranteed, and actual results may differ materially from those projected. Merck undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise. Forward-looking statements in this press release should be evaluated together with the many uncertainties that affect Merck’s business, particularly those mentioned in the cautionary statements in Item 1 of Merck’s Form 10-K for the year ended Dec. 31, 2005, and in its periodic reports on Form 10-Q and Form 8-K, which the Company incorporates by reference.

http://www.merck.com