Drug & Device News

On May 29, appellate courts in New Jersey and Texas threw out or reduced multi-million dollar awards to plaintiffs who claimed they were injured by Merck & Co.'s painkiller Vioxx. A three-judge panel of New Jersey's Appellate Division held in the consolidated cases of McDarby v. Merck & Co., A-0076-07, and Cona v. Merck & Co., 0077-07, that a $15.7 million award to plaintiff John McDarby should be reduced to $4.5 million because the federal Food Drug and Cosmetics Act (FDCA) pre-empted New Jersey's product liability act's punitive damages remedy, N.J.S.A. 2A:58C-5c. (Cona had won no damages.) The appellate court left McDarby's reduced award for compensatory damages in place, however, because it found that state tort-law remedies were not pre-empted by federal law. In the Texas case, Carol Ernst v. Merck & Co. Inc., the three-justice appellate panel reversed the $26.1 million judgment for Carol Ernst, whose 59-year-old husband died in 2001 after taking Vioxx for about nine months. Stated the court, 'We find no evidence that [Ernst's husband] suffered a thrombotic cardiovascular event, i.e., a myocardial infraction triggered by a blood clot. Accordingly, appellee failed to show that the ingestion of Vioxx caused her husband's death.' Ernst's attorney, W. Mark Lanier of Houston, said following the decision, 'I'm upset, and I'll appeal it.'