11.04.2006 14:28:00
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Merck to Appeal Punitive and Compensatory Verdicts In New Jersey VIOXX(R) Product Liability Case; Merck Pleased that New Jersey Jury Rejected Failure to Warn Claim By One of Two Long-Term VIOXX Users
"Merck's actions were proper and did not, in any way, call forthis award as defined by New Jersey law," said Chuck Harrell ofButler, Snow, O'Mara, Stevens & Cannada, a member of Merck's defenseteam. "The evidence was clear that we provided the U.S. Food and DrugAdministration with the information about VIOXX that we were requiredto provide. And, under New Jersey law, that means punitive damagesshould not have been awarded."
"The jury heard irrelevant and prejudicial information from theplaintiffs' attorneys about Merck and an appeal will be our nextstep," said Kenneth C. Frazier, senior vice president and generalcounsel of Merck. "The evidence is that Merck acted ethically and in aresponsible manner - from researching VIOXX prior to approval inclinical trials involving almost 10,000 patients - to monitoring andstudying the medicine while it was on the market - to voluntarilywithdrawing the medicine when we did."
Notwithstanding today's award, the Company said it is pleased thatthe jury found VIOXX was not a substantial contributing factor in theheart attack of Thomas Cona, who had claimed he took the medicine formore than 18 months, and thereby rejected Mr. Cona's failure to warnclaim.
Testimony during the trial showed that both plaintiffs, ThomasCona and John McDarby, had several factors that increased their riskor contributed to their heart attacks.
"We continue to believe that the heart attacks in both these caseswere caused by the pre-existing medical conditions of these two men,and not VIOXX," added Harrell. "Proving that VIOXX was a substantialcontributing factor for someone's heart attack is an important elementin these lawsuits."
Merck also said it will appeal those portions of the verdict thatfound the Company violated the state consumer statute with respect toboth plaintiffs.
Merck is examining various bases for appeal, which include:
-- Improper restrictions on Merck's ability to present relevant evidence to the jury, including orders that:
-- prevented Merck regulatory experts from talking about FDA
rules and Merck's compliance with FDA regulatory
requirements;
-- limited Merck's ability to discuss the FDA's most recent
findings;
-- forbade Merck witnesses to state that they personally used
VIOXX in the face of false allegations that they believed
the medicine was unsafe;
-- stopped witnesses from testifying about scientific studies
performed by Merck regarding the cardiovascular safety of
VIOXX;
-- Allowing unsubstantiated conclusions that were irrelevant and/or inflammatory to be presented to the jury by plaintiff witnesses.
-- Allowing opinion testimony to be given to the jury by witnesses lacking subject matter expertise.
-- Allowing opinion testimony that was not based on a reliable scientific basis as required by law.
In the two-plaintiff case, Mr. Cona alleged he took VIOXX forapproximately 22 months prior to June 9, 2003, when he suffered aheart attack at the age of 57. Mr. McDarby suffered a heart attack atthe age of 75. Mr. McDarby was originally admitted to the hospital onApril 15, 2004, for a broken hip following a fall at home.
"This split verdict reaffirms our commitment to defending eachcase on a case-by-case basis," added Frazier. "Merck is in this forthe long term."
Outside of the split verdict in this case, Merck has only lost onecase. In February, jurors in the first federal case, Plunkett v.Merck, rejected claims that VIOXX caused the heart attackof a Florida man. In November, jurors in New Jersey ruled in favorof Merck in Humeston v. Merck, finding that the company actedresponsibly in providing information to the medical community. Merckintends to appeal last August's plaintiff verdict in a Texas statecourt in Ernst v. Merck, which is the only case it had previouslylost.
About Merck
Merck & Co., Inc. is a global research-driven pharmaceuticalcompany dedicated to putting patients first. Established in 1891,Merck currently discovers, develops, manufactures and markets vaccinesand medicines to address unmet medical needs. The Company devotesextensive efforts to increase access to medicines through far-reachingprograms that not only donate Merck medicines but help deliver them tothe people who need them. Merck also publishes unbiased healthinformation as a not-for-profit service. For more information, visitwww.merck.com.
Forward-Looking Statement
This press release contains "forward-looking statements" as thatterm is defined in the Private Securities Litigation Reform Act of1995. These statements are based on management's current expectationsand involve risks and uncertainties, which may cause results to differmaterially from those set forth in the statements. The forward-lookingstatements may include statements regarding product development,product potential or financial performance. No forward-lookingstatement can be guaranteed, and actual results may differ materiallyfrom those projected. Merck undertakes no obligation to publiclyupdate any forward-looking statement, whether as a result of newinformation, future events, or otherwise. Forward-looking statementsin this press release should be evaluated together with the manyuncertainties that affect Merck's business, particularly thosementioned in the cautionary statements in Item 1 of Merck's Form 10-Kfor the year ended Dec. 31, 2005, and in its periodic reports on Form10-Q and Form 8-K, which the Company incorporates by reference.
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