Merck was ordered to $4.5m to a man who blamed the maker of Vioxx for his heart attack, but nothing to a second plaintiff who also sued the company, according to a decision reached by jurors late on Wednesday.
The men alleged that Merck downplayed the risks of Vioxx, allowing them to continue taking the painkiller for more than 18 months, which helped trigger their heart attacks.
In a mixed vedict the jury in New Jersey state court in Atlantic City awarded $4.5m to John McDarby, 77, but nothing to Thomas Cona, 60. The jury decided Vioxx was not the cause of his heart attack.
Merck shares fell 4 per cent in early trading on Thursday following the trial outcome. The jury was due on Thursday to consider punitive damages against Merck. Raymond Gilmartin, former chief executive at Merck is expected to give evidence during the hearing.
Although Merck has faced trials before, this trial was important becuase it was the first to involve plaintiffs who used Vioxx for 18 months or longer, the period that Merck’s own study indicated placed patients at a significantly increased risk. It also featured Mark Lanier, the lawyer for Mr Cona and the only lawyer to beat Merck in its three previous trials.
Tony Butler, analyst at Lehman Brothers, said in a report: “With a significant number of Vioxx cases filed in the New Jersey state court system alone, 3,000-4,000, we believe investors are likely to infer [based on this potential verdict] the future direction of the Vioxx litigation.”
The claims of Mr McDarby and Mr Cona were heard simultaneously due to the rising backlog of cases.
Merck faces a wave of litigation and potentially billions of dollars in liability after it withdrew Vioxx, a painkiller known as a cox-2 inhibitor, in late 2004 due to increased heart attack and stroke risks.
A company study found that patients taking Vioxx – a product with $2.5bn-a-year in sales - for at least 18 months had a significantly increased risk.
About 10,000 Vioxx lawsuits have been filed again Merck in the US, and that number is sure to rise.
New Jersey is an important bellwether for future litigation because most of the lawsuits have been filed there, or in federal court.
Thus decisions in the so-called long-term use cases (18 months or more) are pivotal in the ultimate determination of Merck’s liability.
Merck so far has vowed to fight every case in court. It argues that it properly disclosed all emerging data on Vioxx risks. It also argues that patients have complex health factors that can cause a heart attack making it hard to prove that Vioxx was the trigger.
Mr Lanier won the first case against Merck last year in an Angelton, Texas trial. A widow won $253m damages, likely to be reduced to $26m under state law, against Merck.
Merck, however, won the next two trials: one in New Jersey and one in federal court, in which both plaintiffs claimed short-term use of Vioxx.
The company expects numerous federal and state trials in the next two years. It has reserved more than $1bn for its legal defences.