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Merck Must Pay $4.5M In Vioxx Case

A state jury has found Merck & Co. liable for one of two former Vioxx users' heart attacks and ordered he receive $4.5 million in damages in a closely watched trial involving two New Jersey men.

The jury found the company failed to adequately warn both plaintiffs about the risk factors linking the now-withdrawn painkiller to heart attacks and strokes, but said the drug was only a factor in one of the men's illnesses.

The panel said the company concealed the risks of the drug for both men, but ruled that only John McDarby, 77, a retired insurance agent from Park Ridge, should receive compensation.

"This split ruling at least suggests that we need to look at these cases on an individual basis, as we have done in the past," said Chuck Harrell, a spokesman for Merck's legal team, who called the verdicts disappointing.

"This case was about the McDarbys and the Conas, but it was about more than that," said Robert Gordon, one of McDarby's lawyers. "It was about the 100,000 people in this nation who had heart attacks. It's about the tens of thousands doctors who were lied to by Merck about the dangers of Vioxx."

McDarby was awarded $3 million for pain and suffering and his wife was awarded $1.5 million. He did not immediately comment after the verdict.

The jury is expected to return to court Thursday to decide whether the company will face punitive damages. Jurors were told by the judge not to comment until after the entire trial ends.

Former Merck CEO Raymond Gilmartin is scheduled to take the stand, to be questioned by plaintiffs' attorney Mark Lanier, who represented Cona in the case.

Compensatory damages are given to cover a plaintiff's actual financial losses, such as medical treatment costs and lost income. Punitive damages penalize a defendant for bad conduct.

The verdict in the Atlantic City, N.J., trial came after less than two days of deliberations by a six-woman, two-man jury.

The trial was the first dealing with plaintiffs who blamed illnesses on long-term use of the painkiller.

McDarby, a diabetic who took Vioxx for four years, suffered his heart attack in his living room and broke his hip as a result, triggering a sudden slide that has left him using a wheelchair and unable to care for himself, according to his lawyers.

The trial also included the case of Thomas Cona, a 60-year-old businessman from Cherry Hill who was stricken one day on a golf course after what he said was nearly two years of use. The jury said he should receive $45 to compensate him for the cost of his medication. Cona declined comment after the verdict.

The verdict capped a monthlong trial in which lawyers for Cona and McDarby laid out now-familiar accusations that Merck rushed the drug to market in a losing battle against competitor Celebrex and actively ignored evidence it was causing cardiovascular complications.

The verdict is the second court loss for Merck, against two victories, one in a retrial.

Like jurors in five Vioxx-related trials before it, the jury saw dozens of e-mails, internal Merck documents and safety study reports and heard live testimony from a parade of cardiology experts, academics and Merck executives.

Plaintiffs lawyers said Cona and McDarby wouldn't have been taking the drug for their arthritis pain if Merck — faced with clinical studies suggesting Vioxx was causing heart attacks and strokes — had not persuaded the U.S. Food and Drug Administration to dilute a new label warning in April 2002.

Merck said it thoroughly tested the drug before introducing Vioxx in 1999. It was a huge hit with older consumers because of its efficiency as a pain reliever and its lack of gastrointestinal side effects that were typical of some arthritis pain relievers.

At its peak, it sold $2.5 billion in 2003.

But Merck ultimately pulled it off the market in September 2004 after a clinical study showed that people who took it longer than 18 months were at twice the risk of suffering heart attacks and strokes.

The company now faces about 9,650 suits in state and federal courts over Vioxx.

It was the second Vioxx trial in New Jersey, where over 5,000 suits are pending — all before state Superior Court Judge Carol Higbee, whose overloaded docket prompted her to impose time limits - enforced by chess timers - on the lawyers arguing the case.

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