Merck - Vioxx; "wanton and wilfull"

Poor Merck. Yesterday they received a fresh blow in the intensifying legal battles over their painkiller Vioxx.

The New Jersey jury in the latest case ordered Merck to pay $9m in punitive damages for engaging in "wanton and wilful" conduct leading to a heart attack in one patient.

This is in addition to the $4.5 million already awarded, but less than the possible maximum of $22.5 million (5 x $4.5 milion) allowed by NJ state law.

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.

(He claimed that the rest of the Vioxx he took were samples left at the doctors by Merck drug reps. Which could, in itself, lead to a whole different brouhaha! It makes you wonder about the whole samples issue. Are they recorded in the patients notes, who checks they are not out of date etc. etc.? )

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.

This judgment, which Merck plan to appeal, has raised the prospect of fresh troubles for Merck's defence after a finding that Vioxx tipped the balance in causing a heart attack in an elderly, ill user taking the medicine over more than 18 months.

Read more here.

And here in the NJ Star-Ledger (Insiders' fave newspaper)

Insiders' view: Calculators to the ready.

Let's say Merck win just over half (60%) of the 10,000 cases pending in US courts. But they loose 40% and have to pay $13.5 (4.5 + 9) million per case.

That's $54 billion, without the legal fees!

In fact it would take only 1,500 such awards to saddle Merck with a liability that would rival the $22 billion legal kitty set aside by Wyeth to cover the fen-phen diet drug scandal.

Could the time to settle be approaching? Probably not yet; more of a pattern has yet to emerge from the tried cases.

This time next year is Insiders' bet.