Merck hit by two setbacks over Vioxx

Merck, the third largest American drug maker suffered a setback when a federal jury in New Orleans ordered it to pay $51 million to a retired F.B.I. agent for a mild heart attack that he suffered after taking the painkiller Vioxx for almost three years.

On top of that a state court judge in New Jersey overturned a Merck victory from November and ordered a new trial in another Vioxx suit. Merck said it would appeal both decisions, but the company’s shares fell almost by 6 percent.

In New Orleans, the jury found that Merck knowingly misrepresented information about Vioxx to retired FBI agent Gerald Barnett's doctors. It said Barnett should get $50 million in compensatory damages and another $1 million to inflict punishment for the damages, saying Merck “acted in wanton, malicious, willful or reckless disregard for Barnett’s rights.”

“Both the finding and the amount of damages were totally uncalled for in this case because Merck acted appropriately in providing information to the medical, scientific and regulatory communities in a responsible and appropriate manner,” said Kenneth Frazier, Merck's general counsel. “While this is not the outcome we had hoped for, our commitment to defending these cases one at a time remains the same.”

The verdict is the fourth multimillion-dollar loss for Merck, Vioxx’s maker, in litigation over the drug and there are three more Vioxx trials scheduled in New Orleans in the coming months.

As for the New Jersey case, Merck said it had a “significant disagreement with the court's decision because the evidence presented to the jury during the course of a seven-week trial in 2005 showed that Merck behaved appropriately with respect to Vioxx and also that Vioxx was in no way related to Mr. Humeston's heart attack.”

Merck had pulled away the arthritis and pain-relief drug from the market in September 2004. Before yesterday’s decisions, Merck’s strategy of aggressively defending cases, rather than looking for a settlement, appeared to be paying dividends. This summer, Merck had won state court cases in New Jersey and California