Maybe it’s a setback for Merck & Co.’s strategy for defending Vioxx, or maybe it’s just a sign of New Orleans reputation as a plaintiff-friendly place, but a federal jury here handed the drug maker it’s biggest setback so far.
Merck was ordered Thursday to pay $51 million to a heart attack victim, in its first loss in federal court. On top of that, a state judge in New Jersey overturned a November verdict favoring the company.
In New Orleans, the jury found that Merck “knowingly misrepresented or failed to disclose” information about Vioxx to retired FBI agent Gerald Barnett’s doctors. It said Barnett, of Myrtle Beach, S.C., should get $50 million in compensatory damages. And it added $1 million in punitive damages, saying Merck “acted in wanton, malicious, willful or reckless disregard for the plaintiff’s rights.”
“New Orleans juries have a tendency to give bigger awards anyway,” said Michael P. Kelly, a trial attorney at McCarter & English in Wilmington, Del., which represents pharmaceutical companies. “And now it’s tough times down there and that doesn’t help. Whenever a trial is in a depressed area it’s bad news for the defendant because juries can have a tendency to see it as a way to redistribute the wealth.”
New Orleans does have a reputation as a good place for plaintiffs, Tulane Law Professor Ed Sherman agreed. He’s not sure however that post-Hurricane Katrina juries would fit the stereotype.
“We’ve lost about half of our population now and that’s the poorer half,” he said, referring to people still displaced because of the storm. “More affluent people tend to be more conservative.”
There are three more Vioxx trials scheduled in New Orleans in the coming months.
In New Jersey, state Superior Court Judge Carol Higbee ruled evidence uncovered since the November verdict entitled Frederick “Mike” Humeston, of Boise, Idaho, to another trial. In November, a jury absolved Merck of any liability related to his 2001 heart attack.
Higbee decided the verdict should be vacated on several grounds including two editorials by the New England Journal of Medicine that chastised Merck for failing to report data on three patients who suffered heart attacks while taking Vioxx as part of a drug study when the company submitted the research for publication. The study, known as VIGOR, has played an important role in the Vioxx trials, and the Journal said the data exclusion called into question the integrity of its conclusions.
As a result of throwing out the verdict, the judge has ordered a new trial, and Merck is considering whether to appeal that ruling. The drug maker said it would appeal the New Orleans verdict. It called both the finding and the amount of damages totally uncalled for.
As for the New Jersey case, Merck said it had a “significant disagreement with the court’s decision because the evidence presented to the jury during the course of a seven-week trial in 2005 showed that Merck behaved appropriately with respect to Vioxx and also that Vioxx was in no way related to Mr. Humeston’s heart attack,” Ted Mayer, of Hughes Hubbard & Reed, a member of Merck’s national defense team, said in a news release.
Mayer said the facts behind the editorial “were known to the plaintiff long before the trial, and the jury was aware of the issue because it was presented by the plaintiff’s expert.”
Mayer also said that the company intended to maintain its policy of trying every Vioxx case.
The lawsuits are among more than 14,200 Vioxx-related suits against Merck in state and federal courts.
Barnett’s lawyer, Mark Robinson, had asked for $25 million in punitive damages, arguing that it would send a message to drugmakers that they should not rush pharmaceuticals to market. Merck’s lawyer, Phil Beck, argued that no further awards were needed to punish the drug maker.
“My guess is that you have already awarded punitive damages. You sent a message loud and clear and the people at Merck heard that message,” Beck said.
Outside the courtroom, Barnett said little, only that he was “very happy” with the verdict. Robinson said he was not disappointed with the relatively small punitive award, saying he wanted punitive damages added as a symbolic gesture to deter drug companies from putting unsafe drugs on the market.
On its verdict sheet, the jury had the chance to assign percentages of fault to Merck and various physicians, but assigned blame only to Merck.
The first federal trial had to be held twice. The first jury deliberated 18 hours over three days, but deadlocked over whether Vioxx was to blame for the death of a Florida man who had taken the drug for less than a month. The second jury in that case came back in less than four hours with a verdict for Merck.
In state courts, before Thursday, Merck had won four cases in New Jersey and California. It had lost two cases in Texas and one in New Jersey.
The New Jersey ruling removes one of Merck’s state wins.
In federal court, the company now has one win and one loss.
Robinson has emphasized that his 62-year-old client, who underwent a quintuple bypass after a heart attack at the age of 58, was careful to keep his risks as low as possible with daily exercise, a healthy diet and drugs to control his cholesterol.
The Vioxx that Barnett took for 31 months was the problem, Robinson told the jury.
AP business writers Theresa Agovino in New York and Jeffrey Gold in Newark, N.J. contributed to this story.