April 11, 2006
By a 7-to-1 vote, jurors in the Atlantic City Superior Court found that Merck had knowingly withheld information from the F.D.A. and that the company's misconduct was "wanton and willful." The verdict was read in Courtroom 3A before Judge Carol E. Higbee, who is overseeing 4,500 other lawsuits against Merck over Vioxx.
The $9 million award comes six days after the same jury awarded Mr. McDarby and his wife Irma $4.5 million in compensatory damages for his heart attack. Mr. McDarby broke his hip in a fall as a result of the heart attack and is confined to a wheelchair.
Today's verdict adds to Merck's legal difficulties over Vioxx, an arthritis medication taken by 20 million Americans from 1999 to 2004. The verdict marks the second time in four Vioxx cases that a jury has ordered Merck to pay punitive damages, which are typically awarded only in cases of egregious corporate misconduct.
Before today's verdict, no jury in
Merck shares dropped as much as 1 percent today after the verdict was announced. They had fallen 3 percent after last week's award.
"This is huge," said W. Mark Lanier, the lead plaintiffs' lawyer
in the case. "Merck thought they were bulletproof
About 9,650 lawsuits, representing 19,000 plaintiffs' groups, had been filed against Merck as of Dec. 31, according to Merck. Mr. Lanier predicted that the number of lawsuits would double over the next several months.
In a statement, Merck said it would appeal the ruling.
"Merck's actions were proper and did not, in any way, call for this award," said Chuck Harrell, a member of Merck's defense team. "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."
The verdict is another big victory for Mr. Lanier, who has also won the only
other verdict against Merck in a Vioxx case so far —
a $253.5 million award in
Before the punitive damages phase of the case began, Merck tried to prevent Mr. Lanier from participating. In a hearing last week before Judge Higbee, Merck argued that Mr. Lanier had represented only Thomas Cona, a second plaintiff in the case. Mr. Cona was not awarded compensatory damages last week and so was not eligible for punitive damages.
But Mr. Gordon, Mr. McDarby's lawyer, quickly responded that Mr. Lanier had handled questions about Merck's liability for both Mr. McDarby and Mr. Cona throughout the case and was the only lawyer capable of cross-examining Merck's witnesses in the punitive phase. Judge Higbee agreed and allowed Mr. Lanier to participate.