Merck fined $50m in another Vioxx case

NEW ORLEANS: Merck lost the second Federal trial over its withdrawn painkiller Vioxx on Thursday and must pay $50m to a retired FBI agent who had a heart attack after taking the drug, a jury ruled.

The jury found that Merck & Co “knowingly misrepresented or failed to disclose” information about the drug to retired FBI agent Gerald Barnett’s doctors. The same jury was to deliberate later in the day on possible punitive damages for Barnett.
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.

Barnett’s lawsuit is among more than 16,000 Vioxx-related suits against Merck in state and federal courts. US District Judge Eldon Fallon was appointed to handle pretrial matters for all the thousands of federal suits. He heard one before Barnett’s, and has three more scheduled for trials this fall.

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, Merck has won four cases in New Jersey and California. It has lost two cases in Texas and one in New Jersey.

The jurors deciding the Barnett case have at least two things in common with the plaintiff: All eight are men. And they’re all getting older. Merck attorney Phil Beck pointed out in closing arguments on Wednesday that both are risk factors for heart attacks, and neither can be controlled.

Barnett’s attorney, Mark Robinson, has emphasised 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.

He told the jury that the problem was Vioxx, which Barnett took for 31 months before his heart attack in July ’02. He continued to take the painkiller for another two years, stopping one week before Merck pulled it from the market in September ’04, after a study showed it increased the risk of heart attacks and strokes.

“This verdict will remind people that Merck still faces significant potential financial liability for Vioxx, which could wind up being at least $5bn in the long run,” said Shaojing Tong, an analyst with Mehta Partners. He noted that Merck has still won a majority of the jury verdicts, and will therefore likely stick to its strategy of fighting each case one by one, rather than attempting to conclude a costly national settlement with plaintiffs.