Jury awards another $9m in Vioxx lawsuit

A New Jersey jury that last week found Vioxx significantly contributed to a 77-year-old man's heart attack awarded him $9 million in punitive damages yesterday, raising Merck & Co.'s liability in the case to $13.5 million and intensifying pressure on it to settle such lawsuits.

Merck said it would appeal the ruling and remains committed to defending each of the nearly 10,000 pending Vioxx cases individually.

The Whitehouse Station, N.J., drug maker withdrew the popular painkiller from the market in September 2004 after its own study found it doubled the risk of heart attacks and strokes. The treatment was considered a blockbuster, with annual sales that peaked at $2.5 billion.

The case in Atlantic City came before a judge who will hear more than half of the pending lawsuits and involved a plaintiff with other heart risks.

The $9 million punitive award is the first such decision against a drug maker in New Jersey since a liability law took effect there in 1995.

Last week, the same jury awarded the plaintiff, John McDarby, $4.5 million in compensatory damages. The second plaintiff in the case, Thomas Cona, was only reimbursed for the cost of his Vioxx prescriptions. The jury found Merck had failed to warn both men about cardiovascular risks associated with Vioxx.

''All things considered, this is a really bad situation for Merck," said Trent Miracle, an Illinois attorney with pending Vioxx cases. ''This speaks volumes as to what Merck is up against. The majority of cases out there are going to be people in their 60s and 70s who were arthritics who also had other confounding issues, like diabetes and hypertension."

Merck has won two Vioxx cases and has suffered two multimillion-dollar losses. In August, the company was ordered to pay $253 million to a widow whose husband died after taking Vioxx for a short time. A Texas limit on punitive damages will slash that award significantly.

The company's decision to keep aggressively defending each case makes sense -- for now -- because it discourages more lawsuits, according to a law professor.

''Ultimately, a defendant's ability to stick to that strategy depends on how often and how hard it gets hit with big verdicts," said Howard Erichson, a professor at Seton Hall Law School in Newark.

Some attorneys watching the New Jersey case worried whether it was wise to bring forward McDarby's claim that four years of Vioxx use contributed to his heart attack. McDarby was in his mid-70s when he suffered it and had struggled with a number of medical problems, including diabetes and high blood pressure.

The New Jersey jury, however, rejected Merck's argument that those health conditions caused the heart attack.

The eight jurors felt they issued ''a fair and honest verdict," jury foreman Timothy Kile said.

According to the case transcript, Superior Court Judge Carol E. Higbee was uncertain whether to let the jury consider punitive damages, said Victor Schwartz, general counsel for the American Tort Reform Association. Because she did, it opens the company to higher damage awards. New Jersey law permits jurors to award punitive damages up to five times higher than compensatory awards.

''l believe that Judge Higbee is trying to create an atmosphere that will put huge pressure on Merck to settle," said Schwartz, who followed the case closely.

Kenneth C. Frazier, Merck's senior vice president and general counsel, said he would not ''try to divine or assign any particular motivation or intent to a presiding judge for her actions."

To enable the punitive damage discussion, attorneys successfully argued that Merck intentionally misled the Food and Drug Administration about Vioxx heart attack risks, and that the company's conduct was in ''wanton and willful" disregard of McDarby's rights.

Mark Lanier, an attorney who represented Cona, said Merck ripped out a key section of a report discussing Vioxx heart attack risks before giving the document to the FDA.

''This was a major error," Lanier said. ''This was a major problem that had major implications."

But Frazier said it was inappropriate for a state jury to consider whether Vioxx risks were appropriately conveyed to patients and physicians because the FDA had already done that analysis.

''To allow, essentially, plaintiffs lawyers to regulate the FDA after the fact, I would suggest, is not in the best interest of healthcare providers or patients," he said. ''There is an awful lot at stake in these cases."

Jami Rubin, a Morgan Stanley analyst, in a research note yesterday predicted the punitive award would be overturned on appeal because the way the matter was handled ''makes a mockery of the whole jury system."

David Moskowitz, a Friedman, Billings, Ramsey & Co. analyst, disagreed. He said the finding ''could set an important precedent for future cases." While investors had braced for a damage award exceeding $20 million, Moskowitz said that ''given the large number of potential cases" $13.5 million is ''a significant amount."

Investors yesterday traded 13 million Merck shares. The company's stock closed at $34.06, down 1.05 percent.

Diedtra Henderson can be reached at dhenderson@globe.com.