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$4 million fee award for forty-five-dollar "consumer fraud" victory in Cona v. Merck

You may recall Thomas Cona, who claimed his heart attack was caused by taking 22 months of Vioxx, rather than his failure to take his cholesterol medicine, his high blood pressure, his weight problem, or his other medical issues. Turned out he only had seven months worth of Vioxx prescriptions, so he told a story on the stand that his doctor gave him shopping bags of free Vioxx samples to last him for over a year. The New Jersey state jury wasn't so gullible as to believe this, and ruled against his multi-million-dollar personal injury claim. One might expect an attorney who put forward such patently false claims would face some sort of sanctions, but New Jersey law instead rewards the attorneys for the partial victory: on June 15, Judge Higbee ruled that a $45 award compensating Cona for his Vioxx co-pays entitles Cona's attorneys to their share of $4 million in total attorneys' fees for the Cona/McDarby trial.

There's certainly a fraud going on here, but the biggest one in this trial isn't being perpetrated by Merck. See also our Apr. 11, 2006 post on the trial.

A representative from Merck told Dow Jones the company will be issuing a statement shortly, and we'll update the post to include it. (Update: "We believe that awarding lawyers several millions of dollars in attorneys' fees is rather unreasonable, considering the claim at issue was never worth more than about $4,000. The amount is especially unreasonable from Mr. Cona's lawyers because they lost the product liability claim that was the heart of their case." Merck will appeal the fees ruling with the liability ruling. Note that Merck will not be able to recover the hundreds of millions it has spent defending itself against tens of thousands of cases, even if it wins every one.)



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.