Merck - Vioxx; "the jury has spoken"

And to misquote Bill Clinton, we are all now trying to figure out what they have said!

A few points:

1. This was described, before trial, as a "Frankenstein case"; two cases poorly joined into one. Looks like the jury agreed and separated them again!

2. Jurors ruled that only one of the plaintiffs, John McDarby, should receive compensation. McDarby was awarded $3 million for pain and suffering, and his wife was awarded $1.5 million.

The other case (Thomas Cona) was most likely rejected by the jury because there was some doubt about how long he had been on Vioxx. To quote Ted Frank:". . . we won't know for sure why the jury split on the question of causation until after they are interviewed, but one possibility is that they disbelieved the claims of Cona and (lawyer) Mark Lanier that the reason Cona's pharmacy records only showed three prescriptions for seven months' worth of Vioxx was that he had received fifteen months worth of free samples from his doctor."

3. The jury found Vioxx was a "substantial" factor in McDarby's heart attack and Merck violated state consumer fraud law by engaging in "unconscionable" marketing practices.

4. And Mercks "trial by trial" strategy. How's that holding up?

''This split ruling at least suggests that we need to look at these cases on an individual basis, as we have done in the past,'' said Chuck Harrell, a spokesman for Merck's legal team, who called the verdicts disappointing.

But that won't be easy.

''This is death by a thousand cuts,'' health care analyst Steve Brozak of WBB Securities LLC said. ''Even if they win the preponderance of cases, they are still in the unenviable position of having to defend against literally thousands of cases.''

5. Under New Jersey law, the jury will return to the Atlantic County courthouse this morning for the penalty phase of the trial. After hearing additional testimony, the panel will be asked to set the amount of punitive damages, which are capped by law at five times the compensatory damages awarded to McDarby and his wife.

That means Merck could be liable for up to $22.5 million.

Insiders' view: the calculators will be hot in Whitehouse Station today as Merck try and figure out how many of the 10,000 pending Vioxx cases may become "McDarbys"!

6. The NJ Star-Ledger has the best reporting.