Merck Draws Split Decision

A jury finds a failure to warn about Vioxx risks but sees causation in only one case.
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Jurors in Atlantic City, N.J. issued a split verdict Wednesday, saying that

Merck's

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arthritis drug Vioxx was a "substantial factor" in the heart attack of one man but that it didn't cause the heart attack of another.

The jury awarded $4.5 million to John McDarby, 77, and his wife in compensatory damages; it awarded $45 to Thomas Cona, 60, for the cost of his medicine. Both live in New Jersey and both say they were longtime users of the drug that Merck withdrew from the market in September 2004.

The jury will meet Thursday to discuss punitive damages, because it also found that Merck violated the state's consumer fraud law by failing to adequately warn the men about Vioxx's risks.

This two-pronged trial is significant because it is the first with plaintiffs claiming to have taken the drug for more than 18 months -- the safety cutoff point identified by Merck when it pulled Vioxx from the market. The company withdrew the drug after clinical trial data revealed that people who took Vioxx for more than 18 months had had a heightened risk of cardiovascular problems compared with those taking a placebo.

Following the news, shares of Merck slipped 99 cents, or 2.8%, to $35 in after-hours trading on Instinet.

During the trial, Merck disputed Cona's contention that he took the drug consecutively for 22 months, saying prescription records show he took Vioxx for a shorter period. Cona had said he also received free samples from several doctors. Cona suffered a heart attack in June 2003.

Merck's attorneys said Cona -- and especially McDarby, who has diabetes -- had other risk factors that made them candidates for heart attacks. McDarby, who had a heart attack in April 2004, says he took Vioxx daily for four years.

Merck issued a brief statement following the verdict, saying that it would provide information at the punitive-damages hearing that would demonstrate that it "submitted to the U.S. Food and Drug Administration all relevant and material information concerning Vioxx." The company said it will make additional comments after the punitive-damages session has been concluded.

In a related matter Wednesday, the

Associated Press

reported that a New Orleans man had dropped his federal suit against Merck. He had claimed Vioxx had caused his heart attack, and said he took Vioxx for 19 months. He dropped the suit, according to wire service reports, because a federal judge wouldn't give an extension to his lawyer, who requested more time to review Vioxx documents. The trial originally was scheduled for December; the lawyer wanted an extension until June.

As of Dec. 31, Merck was named as defendant in approximately 190 class-action suits in the U.S. alleging personal injury or economic damage. The company also is a defendant in 9,650 individual personal injury claims in the U.S.

Prior to the latest decision, Merck had lost one personal injury trial, which it is appealing, in a Texas state court; and it had won two trials, in a New Jersey state court and in federal court.

Merck's legal battles involve as much procedure as they do substance. For example, the company wants to try each case individually, saying each plaintiff has a unique set of circumstances.

But plaintiffs' attorneys want to combine as many complaints as possible into a single trial. It's cheaper for plaintiffs, and the presence of many plaintiffs in one case hinders Merck's strategy of pointing out weaknesses in individual complaints.

That's why Merck opposed the combining of the two plaintiffs in the Atlantic City case. That's also why Merck opposes class-action status in another complaint filed by a union seeking economic damages against Merck. Last week, Merck said it would appeal a decision by a New Jersey appeals court favoring the union and upholding a trial judge ruling that granted class-action status to people claiming economic damage caused by Merck's withdrawing Vioxx.

No trial date has been set in the suit filed by the International Union of Operating Engineers Local #68 Welfare Fund. By granting class-action status, the appeals court will enable insurers, unions and nongovernmental health plans to join this suit, in which the union welfare fund seeks reimbursement for the costs of making Vioxx available to its members. A plaintiffs' victory could trigger a provision in New Jersey law allowing triple damages.

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