ATLANTIC CITY, N.J. – At first, John McDarby’s case looked like a loser. Frail, elderly and confined to a wheelchair after two broken hips, he was a 77-year-old diabetic with clogged arteries. 

Not exactly the kind of victim likely to win over a jury with his claim that a painkiller made by Merck & Co. was to blame for his illness.

Or so many people thought last fall, when Merck chose McDarby’s case as the next involving Vioxx to go to trial. That was before McDarby’s lawyers managed to turn the case around, emphasizing his sickliness and persuading jurors that he never would have taken Vioxx had Merck been up front about its dangers.

The panel Tuesday returned a verdict of $9 million in damages against Merck, saying the pharmaceutical company knowingly withheld Vioxx safety data from the U.S. Food and Drug Administration. Last week, the same jurors said McDarby and his wife deserved $4.5 million in compensation.

"From Merck’s perspective, this was the ideal case to try,” said Andy Birchfield, a Montgomery, Ala., lawyer with 350 Vioxx cases pending.

"The approach of embracing the risk factors was the only option. As a plaintiff’s lawyer, your job is to lay out the truth. He clearly had risk factors. You have to embrace that. The bigger challenge is exposing the truth of what Merck did,” Birchfield said.

Whitehouse Station-based Merck pulled Vioxx off the market in September 2004 after a study showed it doubled the risk of heart attack and stroke when taken for longer than 18 months. The company now faces about 9,650 Vioxx-related lawsuits in state and federal courts.

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.

McDarby, 77, of Park Ridge, took the drug for four years before he was stricken. Merck’s lawyers stressed his risk for heart disease—he was 75 at the time, has diabetes and clogged arteries—but jurors sided with him anyway.

He wasn’t in court for the verdict Tuesday. His wife said the money—which the couple won’t get immediately because of appeals—would go toward giving her husband the around-the-clock medical care he needs.

"It’s the integrity that’s involved, the morality that’s involved. All these things are important,” Irma McDarby said.

The trial was the first involving people alleging use of 18 months or more. That’s important because the study that prompted Merck to voluntarily withdraw the drug found that its risks doubled after 18 months’ use.

"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.

Juror Carla Tennyson said the decision was not "personal against Merck.”

"We need Merck. Every time someone takes a a blood pressure medicine, it’s thanks to Merck and Smith Kline and all the others. It’s only because they just didn’t warn. They have an obligation to tell us the facts and let us decide if the risk was worth taking. That’s all it is,” said Tennyson, a 53-year-old cashier.

The ruling could also lead to a criminal probe. In New Jersey, state law requires that punitive damages cases be referred to the county prosecutor and the state Attorney General’s Office for investigation into whether a criminal act was committed.

The verdicts do not change the company’s intention to keep paying dividends—and to take the Vioxx trials one at a time, general counsel Kenneth C. Frazier said Tuesday. ‘’The company continues to believe it has a very strong financial position and we remain committed to our dividend,” Frazier said.

Merck said it will appeal based on the belief that state Superior Court Judge Carol Higbee inappropriately restricted testimony and evidence in the trial, which combined the case of McDarby and Thomas Cona, 60, of Cherry Hill, both of whom alleged long-term use of Vioxx.

The jury had rejected Cona’s claim.

"Although I’m disappointed the believability of my claim didn’t register, I’m very happy with the results,” Cona said Tuesday. "I think this will have a significant impact on how Merck pursues its additional cases. That’s got to influence them.”

Benjamin Zipursky, a professor at Fordham Law School who has followed the Vioxx trials, said the impact of Higbee’s rulings, which allowed punitive damages to be considered, go beyond the McDarby case.

"If I were Merck, I’d be asking myself, ‘We’ve got thousands of cases before this judge. Could this sequence play out again?"



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