Weitz & Luxenberg News: Court Affirms $4.5 Million Award in Vioxx Trial and Dismisses Appeal by Merck & Co. on Preemption after Wyeth ruling

NEW YORK-(Business Wire)-September 29, 2009 - Weitz & Luxenberg P.C. (www.weitzlux.com) would like to inform the public of a ruling of the New Jersey Supreme Court issued on May 7, 2009, but just released this week, which dismissed an appeal by Merck & Co. in the case McDarby v. Merck. The case was tried by Weitz & Luxenberg on behalf of John McDarby, a diabetic who suffered a heart attack due to his use of Merck’s prescription drug Vioxx. The Order fully affirmed an earlier court’s compensatory award of $3 million for Mr. McDarby’s pain and suffering and $1.5 million for his wife, Irma McDarby’s loss of consortium, plus pre-judgment and post-judgment interest.

“Although we are thrilled to finally see this measure of justice for the McDarby family, we are saddened by the fact that Mr. McDarby did not survive the delays in the appellate process,” said Jerry Kristal, one of the members of the McDarby trial team.

Background

In April 2006, Weitz & Luxenberg attorneys Robert Gordon, Jerry Kristal and Ellen Relkin, together with Mark Lanier of the Lanier law firm, secured a $13.5 million verdict (case # ATL L 1296-05) against Merck for plaintiffs Mr. and Mrs. McDarby in a failure-to-warn case involving Vioxx and the risk of heart attacks and strokes. The jury awarded the McDarbys both compensatory, punitive and consumer fraud damages. Subsequently, the New Jersey Appellate Division, the intermediate appellate court, affirmed the compensatory damage awards for personal injury to Mr. McDarby, but overturned the punitive damage and consumer fraud awards.

The propriety of the punitive and consumer fraud damages awards was a legal issue of first impression since this was the first New Jersey case in which punitive and Consumer Fraud Act damages were awarded in a pharmaceutical case since the passage of the New Jersey Product Liability Act. The Court found that such relief was not allowed by the Act.

Merck appealed the compensatory award to the New Jersey Supreme Court, which granted the drug company certification limited only to the issue of federal preemption, which had yet to be settled before the Supreme Court in Wyeth v. Levine (06-1249). On March 4, 2009, the United States Supreme Court ruled in Wyeth that federal approval of prescription drug labels does not immunize drug companies from being sued, under state law, for inadequately warning of health risks.

On the heels of that decision, after extensive briefing before the Supreme Court, the New Jersey Supreme Court found that the certification should not have been granted to Merck, thus fully affirming the findings of the Appellate Division regarding the compensatory verdict of $4.5 million. Weitz & Luxenberg is gratified that Mr. McDarby’s family will finally receive this award to compensate for his injuries arising from Vioxx.

People who have been harmed by defective medicines or medical devices may obtain a free review of their case at www.weitzlux.com

About Weitz & Luxenberg P.C.

Weitz & Luxenberg, founded in 1986, is one of the leading plaintiffs' litigation law firms in America. The firm has played leading roles in national and local litigations involving mesothelioma and asbestos-related lung cancer, as well as defective medicines and medical devices such as shoulder pain pumps, Stryker hip implants, Zimmer Durom Hip implants, Heparin, Advanced Bionics cochlear implants and Hydroxycut, and general negligence and medical malpractice, among others. A forerunner in the legal fight against polluters, Weitz & Luxenberg has worked with clients harmed by the TVA coal ash sludge, PCE/TCE, MTBE, and PERC/PCE in float-sink preps.