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The punitive damages phase of the Atlantic City Vioxx trial continued Monday, when the jury that last week found Merck & Co. liable for not properly warning of the dangers its drug posed to plaintiffs with heart problems began deliberation over whether the company should pay additional damages. After a five-week trial and 14 hours of deliberation, the jury awarded $3 million on April 5 to John McDarby, 77, who suffered a heart attack in 2004 after four years of Vioxx use, and $1.5 million to his wife Irma. The panel denied damages to co-plaintiff Thomas Cona, 60, who had a heart attack in 2003 but could produce only three prescriptions for the preceding two years he claimed to have taken Vioxx. For both plaintiffs, the jury found that Merck committed consumer fraud through unconscionable commercial practices when marketing Vioxx to physicians; that it made misrepresentations that could have been misleading; and that it intentionally omitted material information about a link between Vioxx and increased risk of cardiovascular injury. In the punitive damages phase, which began Thursday, jurors are deciding whether Merck knowingly concealed the information with “willful and wanton” disregard for others, and, if so, how to punish it. The maximum punitive damages allowable under state law are five times the compensatory damages to the McDarbys, or $22.5 million. Merck’s lead lawyer, Christy Jones, told jurors on Monday that Merck kept federal regulators appraised of Vioxx safety data. “This was not a company that was ignoring red flags,” she said. Plaintiffs lawyer W. Mark Lanier, speaking on behalf of McDarby, said Merck consciously avoided disclosing Vioxx’s risks because it knew profits would suffer. Lanier urged jurors to send a message to Merck and other companies, saying the company was worth $17.9 billion and that it sold $2.5 billion worth of Vioxx in one year alone. As you like it Not surprisingly, the differing verdicts on compensatory damages on April 5 were spun differently by each side. Lanier, who represented Cona, was pleased with the jury’s findings despite the denial of damages to his client. McDarby’s lawyer, Robert Gordon of New York’s Weitz & Luxenberg, was more euphoric, calling the verdict “a victory of 100,000 Americans who had heart attacks from Vioxx” and “tens of thousands of doctors who were lied to by Merck about the dangers of Vioxx.” Christopher Placitella, who represents other Vioxx plaintiffs, was equally enthused. “The jury has sent a clear message to Merck concerning its conduct,” says Placitella, of Red Bank, N.J.’s Cohen Placitella & Roth. “Not only did they find a failure to warn but they found that Merck committed consumer fraud by clear and convincing evidence, which shows they must have had deep concerns about Merck’s conduct.” On the other side, products defense lawyers say the results bear out Merck’s strategy of fighting each case individually. “Merck will be pleased with this verdict overall,” says John Brenner of Newark’s McCarter & English, who has no Vioxx ties but keeps tabs on the litigation. “It validates their strategy of trying each case individually. They won a long-term use case.” Charles Harrell, a Merck spokesman, said the Whitehouse Station, N.J., drug maker was happy the jury had not found a link between Vioxx and Cona’s heart attack. There is no doubt, though, that Merck will appeal the consumer-fraud findings. “There’s going to be a hefty appeal coming out of this case,” says Brenner. Plaintiffs lawyers anticipate that the win may cause a spike in the number of Vioxx suits against Merck. Nearly 10,000 suits have been filed, half of them pending before Superior Court Judge Carol Higbee. Mistrial motions The punitive damages phase has already become fractious. Jones filed two mistrial motions Thursday, one claiming Lanier had spoken too loudly during sidebars and a second claiming Lanier’s questioning of former Merck chief executive Raymond Gilmartin went beyond the scope of what is fair game in the punitive phase of a consumer fraud case. After Lanier’s comments Monday, Merck moved for a mistrial again, saying Lanier’s references to former Gilmartin’s salary and the likelihood Merck would appeal the punitive damages verdict were improper. Higbee denied the motion. Gilmartin testified for three hours Thursday, denying allegations that Merck put profits over patient safety. But Lanier showed jurors Merck’s 2001 and 2002 internal analyses of an estimated loss of half of projected Vioxx sales if Merck put new warnings on its label. This was the subject of private negotiations with the Food and Drug Administration. Gilmartin said those projected figures had “no influence” over the FDA talks. “We wanted that label,” Gilmartin said. On Friday, jurors heard testimony from Merck witness Lisa Rarick, a former medical officer in the FDA’s Office of Women’s Health and now a health-care consultant, about the adequacy of Vioxx warning labels. The jury got the case at about 2 p.m. on Monday, after lawyers summed up their positions for the jury. Associated Press reports contributed to this story.

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