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Merck loses in McDarby case

As Ted noted just a while ago, even as Merck could breathe a sigh of relief when Ellis Diaz dropped his case, the jury was still out -- literally -- on the Cona/McDarby trial in New Jersey. Well, now we know: the jury split its verdict, finding liability for Mr. McDarby and his wife to the tune of $4.5 million, and finding for Mr. Cona on the consumer fraud claim but only awarding $45 in damages.

The winning plaintiff, John McDarby, was a 77-year-old arthritis patient who had taken the drug for 4 years. The other plaintiff, Thomas Cona, was a 60-year-old arthritis patient who had taken Vioxx for 22 months. We won't know whether the jurors' differing decisions hinged on the time differential until reporters interview them. Both Cona and McDarby had taken the drug longer than the 18 month span for which high-dose Vioxx use for the treatment of pre-cancerous intestinal polyps is associated with heart risk.

It should be noted that the jury has yet to consider punitive damages, nor is it clear to me whether Mr. Cona will be eligible. The punitives phase of the trial begins tomorrow.

Note: Edited for correction. Thanks to Ted Frank. More to follow.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.