By Anna Driver
ATLANTIC CITY, New Jersey (Reuters) – Merck & Co.’s former
chief executive denied the company hid data on Vioxx from
regulators as he took the stand on Thursday before a jury that
will decide whether to award punitive damages to a man who said
the painkiller caused his heart attack.
On Wednesday, the jury awarded 77-year-old John McDarby
$4.5 million dollars in compensatory damages. To award punitive
damages under New Jersey law, the plaintiff’s attorneys must
prove that Merck misrepresented material information to the
U.S. Food and Drug Administration.
Raymond Gilmartin, who led Merck during the development and
withdrawal of Vioxx, repeatedly maintained the company did not
try to mislead doctors or regulators.
“Merck wasn’t trying to hide data from the FDA?” asked
Merck lawyer Christy Jones. “No,” replied Gilmartin, who took
the stand for the first time in a Vioxx trial.
Merck stock fell 3.2 percent to close at $34.84 on the New
York Stock Exchange, hurt by concerns over the size of the
damages and Merck’s ability to defend itself in a slew of other
Vioxx suits.
After Gilmartin’s testimony ended, Jones filed two oral
motions for a mistrial. She argued that the plaintiff’s
attorney Mark Lanier had talked loudly enough for the jury to
hear during sidebars with the judge and said Lanier was
presenting evidence that was not relevant.
Judge Carol Higbee denied the motion.
On Wednesday, the N.J. Superior Court jury found that Vioxx
had been a substantial contributing cause of a heart attack
suffered by McDarby. The jury decided the drug was not a
significant cause of a heart attack suffered by a second
plaintiff, Thomas Cona.
Merck, which faces nearly 10,000 Vioxx product liability
cases, pulled the $2.5 billion-a-year drug off 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.
Regarding that 2004 study Gilmartin told jurors, “The way
science is, one can only say what that study showed.” He
earlier testified that the drugmaker saw no increased heart
attack risk after reviewing a 2000 study involving Vioxx.
“We saw no evidence there was increased risk of heart
attack,” Gilmartin told the court.
The 2000 Vioxx study, known as Vigor, found higher rates of
heart problems among patients taking Vioxx than among patients
taking an older painkiller, naproxen. Merck has argued that the
Vigor study showed the heart-protective qualities of naproxen
rather than increased risks of Vioxx.
Lawyers for McDarby have argued throughout the trial that
Merck, based in Whitehouse Station, N.J., put profits ahead of
patient safety when marketing Vioxx.
Gilmartin resigned from Merck in May 2005, ahead of his
scheduled retirement in 2006.
Under New Jersey law, any punitive damages, which can be
awarded as a punishment to rectify a wrong committed by a
defendant, would be capped at $22.5 million — five times
compensatory damages.
“The compensatory damages amount by itself is already
large, in our opinion,” Prudential analyst Tim Anderson wrote
in a research note.
On Friday, the jury may hear testimony from Dr. Lisa
Rarick, a former FDA official and witness called by Merck.
The McDarby case is the second multimillion-dollar Vioxx
verdict against Merck.
In August 2005, Merck was ordered by a Texas jury to pay
$229 million in punitive damages and $24 million for mental
anguish and loss of companionship to the widow of a Texas man
who took the drug for about eight months. The total award is
set to be cut because of a Texas law limiting damages.
Rob Gordon, a McDarby attorney, said his New York law firm,
Weitz and Luxenberg, has 1,000 Vioxx cases filed in Atlantic
County and plans to file 1,500 more before September.
JP Morgan analyst Chris Shibutani said he still believes
Merck has a strong case when it comes to whether Vioxx caused a
heart attack in a particular case and whether the company
adequately warned about the drug.
Merck shares dropped to the mid-20s after the company
pulled Vioxx off the market. But the stock has risen about 30
percent in the past six months.
(Additional reporting by Julie Steenhuysen in Chicago)
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