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The Honolulu Advertiser
Posted on: Wednesday, April 12, 2006

Payout in Vioxx case climbs to $13.5 million

By John Curran
Associated Press

ATLANTIC CITY, N.J. — A New Jersey man was awarded $13.5 million from Vioxx maker Merck & Co., including $9 million in punitive damages yesterday after a jury found that the company knowingly withheld data about the pain drug's risks from federal regulators.

The state court jury had given John McDarby, 77, of Park Ridge, and his wife, Irma, $4.5 million last Wednesday, saying Merck's conduct showed a "wanton and willful disregard of another's rights."

A week ago, the same panel found that Merck failed to warn of the medicine's risks and committed consumer fraud in misrepresenting them to prescribing physicians.

"This is a victory for all of the John and Irma McDarbys of the world, people who are taking medications every single day, who now have at least a chance of making sure that the companies that are making those medications are going to do the right thing," said Jerry Kristal, one of McDarby's lawyers.

Merck, which pulled the blockbuster drug off the market in 2004 after a study linked it to increased risk of heart attack and stroke, said it would appeal yesterday's verdict.

"Merck's actions were proper and did not, in any way, call for this award as defined by New Jersey law," said Chuck Harrell, a spokesman for Merck's legal team. He said the company's appeal would focus on evidence and testimony that state Superior Court Judge Carol Higbee barred from the trial, including limits she set on expert witnesses.

"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," Harrell said.

After the verdict was announced, Merck shares initially rose 1.5 percent, then fell 36 cents, or 1.1 percent, to close at $34.06 in trading on the New York Stock Exchange. Nearly 14 million shares, double normal volume, changed hands.

In August, the company was hit with a $253 million damage award in a similar lawsuit from Texas. That amount will be reduced to $26.1 million at most because of state caps on punitive damages.

Yesterday's decision capped a five-week trial that combined two cases: that of McDarby and Thomas Cona, 60, of Cherry Hill.

Jurors rejected Cona's heart attack claim but found in both cases that Merck misrepresented the risks of Vioxx and concealed them from prescribing physicians.

After the verdict, jurors spoke briefly to reporters, calling the verdicts "fair and honest." They wouldn't answer questions.

Merck faces about 9,650 Vioxx cases in state and federal courts, and has vowed to try them one at a time.