Merck suffers $4.5 million (+$26.1million) Vioxx side-effect.

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April 6, 2006 A Second Loss for Merck Over Vioxx By ALEX BERENSON ATLANTIC CITY, April 5 — Delivering a sharp blow to Merck, a New Jersey jury found Wednesday that the company had not properly warned patients of the dangers of its drug Vioxx and had caused a heart attack suffered by John McDarby in 2004. The jury awarded Mr. McDarby, who had taken Vioxx for four years, $3 million in compensatory damages and Irma, his wife, an additional $1.5 million. Separately, jurors found that Merck had committed consumer fraud against Mr. McDarby, 77, and Thomas Cona, a second plaintiff in the case, who suffered a heart attack in 2003. They did not award compensatory damages to Mr. Cona, 60, who said he had taken Vioxx for almost two years before his heart attack but had only three prescriptions for the drug, covering only a few months. The case will continue Thursday with a one-day trial to determine whether Merck must pay punitive damages to Mr. and Mrs. McDarby. Raymond V. Gilmartin, the former chief executive of Merck, is scheduled to testify in

the punitive damages trial. New Jersey law would cap any punitive damages verdict for Mr. and Mrs. McDarby at $22.5 million. Mr. Cona is not eligible for punitive damages. "It's a wonderful day," W. Mark Lanier, the lead lawyer for the plaintiffs, said after the verdict. "I'm very pleased for the McDarbys." Merck stock skidded 3 percent in after-hours trading after the late-afternoon verdict, the second multimillion-dollar award against the company in the four Vioxx cases that have reached juries. Lawyers for plaintiffs predicted that the victory, which came after a month of testimony, would cause the number of lawsuits against Merck to soar. Merck said it was pleased that the jury had not connected Vioxx to Mr. Cona's heart attack and said it would make a longer statement after the trial was finished. Judge Carol E. Higbee, who is overseeing the case, barred the jury of six women and two men from speaking

to reporters until they reached a verdict in the punitive damages phase. As of the end of last year, 9,600 product liability suits had been filed, representing 19,000 groups of plaintiffs, according to Merck. "Merck must dissect the loss and retool its trial strategy for the next round," said Peter Bicks, a defense lawyer for Orrick, Herrington & Sutcliffe who is not involved in the litigation but has followed it closely. Merck stopped selling Vioxx in 2004 after a clinical trial showed that the drug increased the risk of heart attacks and strokes in people who took it for at least 18 months. More than 20 million Americans took Vioxx from 1999 to 2004. Epidemiologists have estimated that 100,000 people might have suffered heart attacks because of the drug. After 14 hours of deliberations over two days, the jurors found that Vioxx had caused Mr. McDarby's heart attack and that Merck had

failed to warn patients and doctors of Vioxx's heart risks. They awarded $3 million to Mr. McDarby and an additional $1.5 million to his wife. The finding that Merck had failed to warn of the drug's dangers was the only unanimous vote. In the other findings against the company, the votes were 7 to 1. The verdict was read about 5:30 p.m. in Courtroom 3A of the Atlantic County Superior Court, a squat, block-long brick building in the middle of this seaside casino town. Jurors also found that Merck had committed consumer fraud by misleading doctors about the risks of Vioxx. For that, they awarded Mr. McDarby an additional $12,000 — triple the amount he spent on Vioxx prescriptions. The finding of consumer fraud will also force Merck to pay at least some of the lawyers' fees for Mr. McDarby. The fraud finding could have bearing on another New Jersey fraud lawsuit that is pending before Judge

Higbee, which was brought against the company by health plans and insurance companies. Though Mr. Cona will not receive compensatory damages, he will receive $135, triple his spending on Vioxx prescriptions, as a result of the consumer fraud award. Mr. Lanier and Robert Gordon, Mr. McDarby's lawyer, said they were very pleased with the verdict, even though Mr. Cona did not receive damages. "This verdict is a victory of 100,000 Americans who had heart attacks from Vioxx," Mr. Gordon said. "This is a victory for the tens of thousands of doctors who were lied to by Merck about the dangers of Vioxx." Lawyers for both sides had viewed this trial as pivotal, because Mr. McDarby had taken Vioxx continuously for 48 months, much longer than plaintiffs in earlier trials. Merck acknowledges that Vioxx increases heart attack risks when it is taken for more than 18 consecutive months but says that the drug has

not been proven to increase risk when it is used for shorter periods. Plaintiffs' lawyers and many independent scientists dispute that assertion and say that Vioxx raises the risk of heart attacks after only a few months of use. Both sides agree that plaintiffs' odds of victory increase sharply if they can prove they took Vioxx for more than 18 months. In the two lawsuits Merck has won, the plaintiffs took Vioxx for only a few weeks, and many plaintiffs' lawyers are now reluctant to bring those cases. Had Merck won this case, plaintiffs' lawyers might have wondered if the $253.5 million award that Mr. Lanier won in a Vioxx case in Texas in August was an aberration. (Texas law will automatically reduce that award, for the widow of a man who died in 2001 after taking Vioxx for seven months, to $26.1 million.) Now Merck has lost a large verdict less than 100 miles from its headquarters in Whitehouse Station, N.J. Because Mr.

McDarby had diabetes, clogged arteries and formerly smoked, Christy Jones, a lawyer for Merck, argued that he might have suffered a heart attack even if he had never taken Vioxx. But jurors rejected that argument, voting 7 to 1 that Vioxx had caused his heart attack. As a result, plaintiffs' lawyers will be more willing to bring lawsuits where patients had severe risk factors, as long as they can prove they had taken the drug for at least a few months in a row, Mr. Gordon said. "Lawyers are going to go back through their files" and look for people who had severe risk factors whom they previously rejected, he said. Jerry Kristal, another lawyer for Mr. McDarby, said the verdict showed that risk factors were Merck's "worst defense." Copyright 2006 The New York Times Company "Our ideal is not the spirituality that withdraws from life but the conquest of life by the power of the spirit." - Aurobindo.

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