A jury began deliberating on Tuesday in the latest Vioxx product-liability suit after a four-week trial in which Merck & Co. Inc. defended itself against claims that its withdrawn pain drug caused the heart attacks of two New Jersey men.
The jury of six women and two men must decide whether Merck failed to adequately warn of a link between Vioxx and an increased risk of heart attacks and other cardiovascular events, and whether the company knew or should have known about the risks before the plaintiffs’ heart attacks.
The jurors must also decide whether Vioxx was a “substantial contributing factor” to the heart attacks of Thomas Cona, 60, and John McDarby, 77. If they agreed that Vioxx was a substantial cause of the attacks, they would also have to award financial damages to the men and their wives.
'Failure to warn'
Jurors are also charged with deciding whether Merck committed a series of offenses under New Jersey consumer fraud laws, including whether it misrepresented the cardiovascular risks of Vioxx; whether it used “unconscionable commercial practices” in marketing the drug to doctors; and whether it intentionally concealed information about the heart risks of Vioxx from physicians.
In her instructions to jurors, New Jersey Superior Court Judge Carol Higbee said they must decide the “failure to warn” questions based on a “preponderance of the evidence.” That means “plaintiffs have to tip the scale ever so slightly in order to prevail,” she said, adding that the burden of proof is on the plaintiffs to establish their claims.
But on the five consumer fraud questions, the jury must find a “clear and convincing standard of proof,” that the allegations are true, Higbee said.
Merck is facing some 10,000 Vioxx-related lawsuits. This case is being particularly closely watched as it is the first trial involving long-term users of the popular pain medicine.
Merck voluntarily pulled the $2.5 billion a year drug from the market in September 2004 after a study showed it doubled the risk of heart attack and stroke among people who used it for at least 18 months.
Guiding jurors in their deliberation on damages, Higbee said the plaintiffs are entitled to recover “fair and reasonable compensation” for any permanent or temporary injury, disability, impairment and loss of enjoyment of life.
Deciding any damages requires a “high order of human judgment,” Higbee told the jury, and it must be determined without “passion, prejudice, bias or sympathy.”
She warned jurors to ignore the facts that Merck is a New Jersey company and that the plaintiffs are from New Jersey.