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ATLANTIC CITY, N.J. � A jury in Atlantic City Tuesday ordered Merck & Co. to pay $9 million in punitive damages to a user of Vioxx, finding the drug maker knowingly withheld data from federal regulators about the painkiller’s cardiovascular risks. After a three-day trial on punitive damages, the jurors found clear and convincing evidence that Merck withheld material information about Vioxx from the Food and Drug Administration and that its conduct was deliberately meant to harm. The verdict came a week after the jury awarded $3 million in compensatory damages to John McDarby, 77, of Park Ridge, N.J., and $1.5 million to his wife, Irma, for loss of services. McDarby’s lawyer, Robert Gordon of New York’s Weitz & Luxemburg, said this is the first punitive damages verdict against a pharmaceutical company under the 1995 New Jersey Product Liability Act, which generally caps punitive damages at five times the amount of compensatory damages. “The jury found that there was more than ordinary negligence and willful, wanton and reckless conduct,” said Frank McClellan, a professor of torts at Beasley School of Law at Temple University in Philadelphia. But, he added, “Merck should take some comfort in the fact that the $9 million doesn’t reflect great anger, given that they could have awarded $22.5 million.” Under the statute, 2A:15-5.17, the award of punitive damages requires the trial judge, Superior Court Judge Carol Higbee, to refer the case to state or county prosecutors for a criminal investigation. “This jury has sent a message out from the back yard of pharmaceutical land that they take their policing power seriously,” said W. Mark Lanier, who represented McDarby’s co-plaintiff, Thomas Cona. The jury did not award compensatory or punitive damages to Cona, 60, who had only three Vioxx prescriptions in the two-year period he claimed to have taken the drug. Merck withdrew Vioxx from the market in 2004 when a study showed it doubled heart attack risk after 18 months of use. The Atlantic City trial was the first involving plaintiffs who had used Vioxx longer than that period of time. A lawyer for Merck said that the Whitehouse Station, N.J., company was disappointed with the punitive damages verdict and will appeal. “Merck’s actions were proper and did not, in any way, call for this award as defined by New Jersey law,” said Chuck Harrell of the Memphis office of Butler, Snow, O’Mara, Stevens & Cannada. “The evidence was clear that we provided the FDA with the information about Vioxx that we were required to provide. And, under New Jersey law, that means punitive damages should not have been awarded.” Merck had argued at trial that the data were statistically invalid and that no FDA regulation requires drugmakers to submit invalid statistics. “They did not engage in deliberate and willful misconduct, deliberate acts that they knew would harm someone else,” Merck lawyer Christy Jones told jurors in her closing argument of the punitive-damages phase. “The doctors and scientists at Merck always acted in a way that they believed was appropriate. Don’t label them as killers. Don’t label them as guilty of willful and wanton misconduct.” Merck General Counsel Kenneth Frazier added, “The jury heard irrelevant and prejudicial information from the plaintiffs’ attorneys about Merck and an appeal will be our next step. The evidence is that Merck acted ethically and in a responsible manner � from researching Vioxx prior to approval in clinical trials involving almost 10,000 patients, to monitoring and studying the medicine while it was on the market, to voluntarily withdrawing the medicine when we did.” Merck lawyers say that the appeal will focus on what they call improper restrictions on presenting relevant evidence to the jury, such as orders that:

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