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Merck Loses Vioxx Appeal

Oct 1, 2009 | Parker Waichman Alonso LLP

The New Jersey Supreme Court has thrown out a Merck & Co. appeal of a $4.5 million Vioxx award.  According to a Business Week report, the dismissal ended the last unresolved Vioxx patient lawsuit.

Vioxx was approved for use in 1999, and quickly became a blockbuster for Merck, with annual sales of $2.5 billion. However, the painkiller was pulled off the market in 2004 after an analysis of patients using Vioxx linked the defective drug to more than 27,000 heart attacks or sudden cardiac deaths in the U.S. from 1999 through 2003.

The withdrawal prompted thousands of product liability lawsuits that claimed Merck didn’t properly warn doctors and patients of the drug’s risks. To settle most of those suits, Merck established a $4.85 billion fund in November 2007.  The New Jersey lawsuit Merck appealed - McDarby v. Merck - was one of a few not included in the settlement, Business Week said.

According to Business Week, McDarby v. Merck was filed on behalf of John McDarby, who suffered a heart attack in 2004.  He passed away from complications related to the heart attack in 2007.   According to Bloomberg News, a jury had originally awarded his family a total of $13.5 million in damages, including $9 million in punitive damages in 2006.  A lower New Jersey appeals court threw out the punitive damage award while upholding the jury’s compensatory damage finding, reducing the award to $4.5 million

According to Bloomberg, Merck still faces 18 suits filed by governmental agencies alleging the company violated consumer-protection laws with its marketing of Vioxx.