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A jury in Atlantic City, N.J., on Tuesday awarded $9 million in punitive damages to a 77-year old man who said



pain reliever Vioxx caused his heart attack.

Last week, the jury agreed with John McDarby's claim that four years of taking Vioxx led to his heart attack in 2004, and it awarded McDarby and his wife $4.5 million in compensatory damages.

Merck said it would appeal both last week's and Tuesday's verdicts. "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, Merck's general counsel. "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."

The jury voted on punitive damages because it ruled last week that Merck had violated the state's consumer fraud law for failing to adequately warn McDarby about Vioxx's risks. Merck withdrew Vioxx from the market in September 2004 after a clinical trial revealed a higher risk of cardiovascular problems among people who took Vioxx for more than 18 months vs. people receiving a placebo.

The jurors began the punitive-damages phase Thursday, after issuing a

split verdict on Wednesday. Although they agreed with McDarby's claim, they said Vioxx didn't contribute significantly to the heart attack of 60-year old Thomas Cona, whose claim was presented during the same trial.

Cona said he took the drug for 22 months, although Merck challenged his comments during the trial by showing that prescription records didn't back up his claims. Cona said several doctors gave him free samples.

"Merck's actions were proper and did not, in any way, call for

the punitive damages award as defined by New Jersey law," said Chuck Harrell of Butler, Snow, O'Mara, Stevens & Cannada, an attorney for Merck. "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 New Jersey trial is important because McDarby is the first victorious plaintiff who took Vioxx for more than 18 months. Merck lost a case in Texas in August to a widow who said her husband died of a heart attack after having taken Vioxx for eight months. Merck is appealing that case and the verdict of $253 million in compensatory and punitive damages. Even if Merck loses on appeal, the verdict will be cut to $26 million because Texas law has a limit on punitive damages.

New Jersey also has a cap on punitive damages -- five times the amount of compensatory damages. Merck has won three trials, including the Cona verdict.

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. Merck also is a defendant in 9,650 individual personal injury claims in the U.S.

The punitive-damages verdict in New Jersey was being watched by analysts and lawyers to see if they could

detect future jury sentiment. Prior to the trial, some suggested that a high punitive-damages award -- especially if the award went above the New Jersey law's limit -- would send a signal to current and potential litigants that Merck's marketing and regulatory practices would be vulnerable at future trials.

In early morning trading, Merck's stock lost 3 cents to $34.40.