The jury determined that the company knew or should have known that its pain drug increased the risk of heart attacks and other cardiovascular events, but didn't adequately warn users or their doctors.
In a split decision after about 14 hours of deliberation, the jury said Vioxx had been a substantial contributing cause of a heart attack suffered by 77-year-old plaintiff John McDarby but determined that the drug was not a significant cause of a heart attack suffered by a second plaintiff, Thomas Cona. Both men blamed the drug for their attacks.
Merck was also found to have misrepresented and concealed the heart risks of Vioxx when marketing the drug to doctors. However, the jury found that Merck did not commit consumer fraud in its efforts to sell the drug. Jurors awarded $4.5 million in compensatory damages to McDarby but nothing to Cona. Shares of the drugmaker fell 3 percent in after-hours trade.
The trial now moves into the punitive phase in the case of McDarby. Jurors will determine on Thursday whether McDarby is entitled to punitive damages on top of the compensatory damages he was awarded. Punitive damages are capped at five times the amount set for compensatory damages under New Jersey state law.
Former Merck chief executive Raymond Gilmartin will appear at Thursday's hearing to explain the company's actions over Vioxx, said Merck spokesman Kent Jarrell.
Rob Gordon, an attorney for McDarby, predicted there would be more Vioxx cases following the jury's award to McDarby, who had a series of health problems including diabetes and heart disease that his attorneys said were exacerbated by Vioxx.
"I think there is going to be a significant increase in the number of filings against Merck," Gordon told reporters after the verdict.
Merck attorney Chuck Harrell said the company was "disappointed" by the split decision. He added, "The split ruling at least suggests that we need to look at these cases on an individual basis as we have in the past."
Neither McDarby nor Cona made any comment as they left the court. Mark Lanier, who represented Cona, told reporters after the verdict that the jury "evidently didn't believe that Cona took the drug." Merck had sought to cast doubt on the length of time that Cona took Vioxx.
If anything is clear in this mixed verdict, according to Steve Brozak, a pharmaceuticals analyst at WBB Securities, it's that Merck is in the middle of a "long and arduous process. "I think that Merck has to be calculating as we speak as to how long this process can continue, but (the company) can't win on draws.
"They have a mixed verdict here, but literally thousands of cases standing in front of them, and attorneys handling those cases can thrive all day long on these types of verdicts."
In previous trials, Merck was able to argue that there was no evidence of increased heart risk associated with short-term use of the pain medicine. Because Cona, 60, and McDarby were both long-term Vioxx users, this trial has been particularly closely watched for indications of how future cases might play out.
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.
Since then, the drugmaker has been hit with nearly 10,000 Vioxx-related lawsuits.
