Merck & Co Inc. will appeal the decision returned by a New Jersey state court jury assessing compensatory and punitive damages in a trial of a product liability case brought by Frederick Humeston, an Idaho man who blamed his heart attack on Vioxx.
Today's verdict was part of a two-plaintiff, multi-phased trial that the court itself described as "something new." In its verdict last week, the jury rejected the failure to warn claim brought by a second plaintiff involving a 2002 heart event.
"We disagree with today's jury's verdict," said Hope Freiwald of Dechert LLP, a member of Merck's defense team. "The last time a jury considering the Humeston case had a chance to hear all the evidence at one time it found that Merck acted responsibly." Merck has objected to the structure of the trial because of the potential for jury confusion and bias.
Humeston, a postal worker from Boise, Idaho, alleged he suffered a heart attack on Sep. 18, 2001, at 56, as a result of his use of Vioxx.
"We believe Humeston would have suffered a heart attack whether he was taking Vioxx or not," added Freiwald. "In addition to his many individual risk factors for developing coronary disease, Humeston actually had significant coronary disease. This takes decades to develop and had nothing to do with his use of Vioxx."
"We believe that the punitive damages assessed today by the jury are uncalled for because Merck acted appropriately in providing information to the medical, scientific and regulatory communities in a responsible and appropriate manner," said Kenneth C. Frazier, executive vice president and general counsel of Merck.
"While this is not the outcome we had hoped for, these are all individual claims involving very different circumstances and we need to consider the facts of each case on an individual basis," added Frazier.
Numerous juries considering all of the facts of individual cases in more typical, single-phase trials have already held that Merck acted appropriately with regard to the warnings given to doctors around the country.
Merck is exploring several grounds for appeal, including insufficient evidence and the application of incorrect legal standards.
Merck believes the verdict is contrary to the evidence presented at trial and that the punitive damages are without merit, excessive, and not in accordance with constitutional guidance by the US supreme court limiting punitive damages. In addition to the company's strong basis for appeal, Merck also will pursue available legal procedures to ensure those constitutional limits are applied.
In addition to presenting evidence of Humeston's pre-existing risk factors, Merck presented evidence that it carefully studied Vioxx before and after receiving approval from the US Food and Drug Administration (FDA), and consistently made the results of studies available to the FDA and the medical community.
Following the first phase, the jury in Atlantic City found that plaintiffs failed to prove that Merck failed to provide an adequate warning to prescribing physicians about an increased risk of heart attacks from Vioxx prior to September 2002, but did fail to do so prior to September 2001.
As a result of the Merck verdict, only one of the two plaintiffs, Humeston, was able to seek compensatory or punitive damages in the second phase of the trial.