To Carla Tennyson, the case against Merck & Co. and its Vioxx pill boiled down to one thing — coming clean.
Tennyson was one of the jurors who slapped Merck with a $9 million punitive damage award Tuesday, concluding that the drug maker dragged its feet in notifying people about the risks of its blockbuster arthritis drug and modifying its product label once it knew about them.
“They have an obligation to tell us the facts and let us decide if the risk was worth taking,” she said. “That’s all it is. For me, it was right from the beginning the label. They could’ve gotten a new label in 30 days, as soon as they realized there was a problem. They didn’t.”
The verdict, combined with a $4.5 million compensatory damages award ordered by the same jury last week, delivered another dose of bad news to Whitehouse Station-based Merck, which pulled Vioxx off the market in 2004 after a study linked it to increased risks of heart attack and stroke.
The damage award was to John McDarby, 77, of Park Ridge, a diabetic who took the drug for four years before he was stricken. Merck’s lawyers stressed his risk for heart disease — he was 75 at the time, with diabetes and clogged arteries.
McDarby wasn’t in court for the verdict Tuesday. His wife said the money — which the couple won’t get immediately because of appeals — would go toward giving her husband the around-the-clock medical care he needs.
“It’s the integrity that’s involved, the morality that’s involved. All these things are important,” Irma McDarby said.
The trial was the first involving people who said they used the drug for 18 months or more. That’s important because the study that prompted Merck to voluntarily withdraw the drug found that its risks doubled after 18 months’ use.
“This is a victory for all of the John and Irma McDarbys of the world, people who are taking medications every single day, who now have at least a chance of making sure that the companies that are making those medications are going to do the right thing,” said Jerry Kristal, one of McDarby’s lawyers.
The ruling could also lead to a criminal probe. In New Jersey, state law requires that punitive damages cases be referred to the county prosecutor and the state Attorney General’s Office for investigation into whether a criminal act was committed.
Plan to appeal
The verdicts do not alter Merck’s plan to battle the Vioxx trials one at a time, general counsel Kenneth C. Frazier said Tuesday.
Merck said it will appeal based on the belief that state Superior Court Judge Carol Higbee inappropriately restricted testimony and evidence in the trial, which combined the case of McDarby and Thomas Cona, 60, of Cherry Hill, both of whom alleged long-term use of Vioxx.
The jury had rejected Cona’s claim.
“Although I’m disappointed the believability of my claim didn’t register, I’m very happy with the results,” Cona said Tuesday. “I think this will have a significant impact on how Merck pursues its additional cases. That’s got to influence them.”
Benjamin Zipursky, a professor at Fordham Law School who has followed the Vioxx trials, said the impact of Higbee’s rulings, which allowed punitive damages to be considered, goes beyond the McDarby case.
“If I were Merck, I’d be asking myself, ‘We’ve got thousands of cases before this judge. Could this sequence play out again?”’ Zipursky said.
Merck faces about 9,650 Vioxx cases in state and federal courts. The company has won two cases and lost two, and another trial is under way in Texas. In August, Merck was hit with a $253 million damage award in a Texas lawsuit. That amount will be reduced to $26.1 million at most because of state caps on punitive damages.