Latest US Vioxx trial ends in a split decision, but gives fresh hope to UK victims

Vioxx compensation claims


The fourth Vioxx case to be heard in the US concluded on 5th April with a jury from New Jersey - Merck's home state - delivering a split decision. The jury concluded that Vioxx was the cause of plaintiff John McDarby's heart attack and ordered the company to pay $4.5 m (£2.5) in compensation. However the jury decided not to award compensation to the second plaintiff Thomas Cona, who claimed he took Vioxx for just under 2 years before his heart attack, but had only three prescriptions for the medicine over that time.

Vioxx side effects

The jury found that Merck had committed consumer fraud against both Cona and McDarby, asserting that the company failed to adequately warn the two men about the increased risk of heart attack and stroke associated with the drug. However, given the discrepancies in Mr Cona's prescription history the jury were not confident enough to award compensatory damages. Instead, as a result of the consumer fraud verdict, Cona was given $135 to reimburse him for the cost of his Vioxx prescriptions.

The jury will continue to deliberate, to decide whether or not Merck must pay punitive damages to McDarby. Under New Jersey law, punitive damages would be capped at $22.5m.

This judgement is a positive development for hundreds of UK victims of the drug who also took Vioxx and experienced similar symptoms, and are now pursuing claims against Merck for the side effects they say resulted from taking Vioxx to relieve symptoms of arthritis.

Vioxx solicitors

Speaking on behalf of UK victims Sallie Booth of National law firm Irwin Mitchell, who are representing over 150 UK claimants, said, "This is extremely encouraging news for our clients. We wait to hear whether or not we will take our cases forward in the US or the UK. Whilst UK based claimants are entitled to commence legal proceedings against Merck in America, the US judge in charge of this case, Judge Higbee, may decline to "accept" the cases in the US jurisdiction if she considers that it would be more convenient or suitable for the claimants to bring their cases to court in another state or country."

This recent case involved Thomas Cona, a 59 year old New Jersey businessman who took Vioxx for about 22 months before suffering a heart attack in June 2003. The second Claimant was John McDarby, age 77, who took Vioxx for 4 years before he had a heart attack in April 2004.

Lead lawyer for the plaintiffs throughout the trial was Mark Lanier, the Texas lawyer who brought the successful case in Texas on behalf of the widow of Mr Ernst in August 2005, when compensation in the total sum of $253 million was awarded.

This is the second time a US jury has decided that Vioxx was the likely cause of the plaintiff's heart attack. An earlier decision in the New Jersey state court found in favour of the manufacturers, Merck, while a recent federal trial also held that Merck was not responsible for the death of Mr Plunkett, whose short term use of Vioxx and other cardiovascular risk factors were seen to be integral to the failure of the case.

Previous studies undertaken in the US have suggested that the risk of serious thrombotic events (such as heart attack and stroke) were increased after taking Vioxx for a period of 18 months or more.

Vioxx trial

The trial highlighted aspects of Merck's behaviour through the development phase of Vioxx. Evidence cited on behalf of the Plaintiffs demonstrated that approval for Vioxx was rushed through. Plaintiffs' attorney Mark Lanier accused Merck of cutting corners in the development of the drug, and suggested that approval from the Regulators was sought in half the time normally taken. It was said that Merck needed Vioxx to replace the sales of six major drugs on which patents were set to expire in late 1999.

Allegedly, Merck had calculated that Vioxx was worth $889 million a year in sales if it reached the market ahead of other Cox II inhibitors and only $278 million if it followed Celebrex, a similar arthritis drug manufactured by rival pharmaceutical company Pfizer. Vioxx eventually reached $2.5 billion in annual sales before it was withdrawn in September 2004.

Not surprisingly, the outcome of the New Jersey trial has been seen as a positive development for plaintiffs in the 9 650 trials yet to be heard.

Have you got a Vioxx claim? If we can help you or someone you know with a similar case, please visit our Drug liability claims section.

Alternatively, if your claim affects a number of people, please visit our group action section to see how we could help you.