How Did Merck Lose A Critical Vioxx Trial In New Jersey, Its "Home Court"?

On April 5, 2006 the jury in John McDarby v. Merck & Co., Inc. awarded Mr. McDarby and his wife $4.5 million in compensatory damages for his April 2004 heart attack, based on their finding that it was caused by his use of Vioxx.

On April 11, 2006, in the second phase of the McDarby trial, the same jury determined that Merck should pay punitive damages in the amount of $9 million to Mr. McDarby and his wife.

Insofar that this large Vioxx verdict against Merck occurred in a New Jersey state court — which was seen as Merck’s "home court" in this litigation by some observers — many people are surprised by the outcome of the McDarby case. 

Surprised or not, you may be wondering just what issues the jurors had to decide in handing down this significant $13.5 million dollar Vioxx jury verdict.  Here’s a summary of how the New Jersey jury voted in the McDarby case.

We start with the compensatory damages phase of the McDarby trial:

• On the issue of whether the defendant Merck knew of an increased risk of serious heart problems associated with Vioxx use but nonetheless failed to provide an adequate warning to the plaintiff McDarby:  Unanimous decision in favor of the plaintiff.
• On the issue of whether the defendant Merck had misrepresented and suppressed material information to doctors about the increased risk of serious heart problems associated with Vioxx:  Seven-to-one decision against the defendant.

As for punitive damages aspect of the McDarby case:

• On the issue of whether the defendant Merck knowingly withheld or misrepresented information required to be submitted to the FDA, which information was material and relevant to the increased risk of serious heart problems associated with Vioxx:  The jury found that the plaintiff proved this by clear and convincing evidence.
• On the issue of whether the defendant Merck’s actions showed a "wanton and willful disregard" of Mr. McDarby’s rights, so as to justify an award of punitive damages in New Jersey: The jury found, again, that the plaintiff proved this by clear and convincing evidence.

As for the aftermath, on April 11 Merck issued a press release stating that it will appeal both the punitive damages verdict and compensatory damages awarded by the jury to Mr. McDarby and his wife.

(Posted by: Tom Lamb)