Lisa Brennan
New Jersey Law Journal
March 14, 2007


Jurors in Atlantic City, N.J., assessed punitive damages of $27.5 million against Merck & Co. for marketing its painkiller Vioxx without properly warning of its significant cardiovascular risks.

The punitive award came late on Monday, hours after the jury found that the drug and the failure to warn contributed to plaintiff Frederick Humeston's heart attack, which occurred five months before Merck changed the product's label and three years before the product was taken off the market.

The jury had awarded $18 million to Humeston, 61, for pain, suffering and loss of enjoyment of life, and $2 million to his wife Mary for "loss of society and services of her husband."

The damages verdicts came 10 days after the jury made a general finding that Merck misrepresented Vioxx's risks while marketing it to doctors and suppressed information about the risks.

In handing up the punitive damages verdict, the jurors called Merck's conduct "malicious, oppressive and outrageous." The specific bases for the award were not immediately known, but New Jersey's punitive damages statute, N.J.S.A. 2A:15-5.10 et seq., allows jurors to consider:

• the likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;

• the defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;

• the conduct of the defendant upon learning that its initial conduct would likely cause harm;

• the duration of the conduct or any concealment of it by the defendant;

• the profitability of the misconduct to the defendant;

• when the misconduct was terminated; and

• the financial condition of the defendant.

The jurors were advised that Merck has a net worth of $17 billion and that it earned $5.7 million on Vioxx sales of $16.8 million in Idaho -- Humeston's state of residence -- before the drug was removed from the market in late 2004.

The statute caps punitive damages at five times the amount of compensatory damages, or $350,000, whichever is greater, so the award is within that limit.

Merck will appeal, says its lawyer, Hope Freiwald. She says the multiphase trial structure stacked the cards against Merck because the jurors' general liability findings in the first phase prompted them to find against Merck on specific causation in the second phase.

"It's unfair to make the jury decide these issues in isolation," says Freiwald, of Dechert in Philadelphia. "We think the verdict in this case reflects the fact Merck didn't have a chance to tell the jury the entire story before the jury formed its conclusions."

The $47.5 million verdict is the largest against Merck in a New Jersey Vioxx trial. The previous benchmark was an April 2006 award of $13.5 million in damages -- $9 million of them punitive -- to John McDarby, who also sued on a failure-to-warn claim. Product liability defense lawyer John Brenner, who does not represent Merck, called Humeston's award aberrational and said he expects a remittitur. "It's so out-of-proportion to what New Jersey juries typically give in these cases ... it would seem that the jury was angry with Merck," says Brenner, of Newark's McCarter & English.

Vioxx plaintiffs lawyers hope the verdicts send a message to Merck, which has a policy of trying each and every suit. "It's time they do the right thing here and settle these cases," says Michael Ferrara Jr., of the Ferrara Law Firm in Cherry Hill.Lisa Brennan
New Jersey Law Journal
March 14, 2007

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