Merck & Co., Inc.(NYSE:MRK) has lost another round in its contining Vioxx saga in a New Jersey court. Judge Carol Higbee denied Merck’s motion for a new trial and further denied their request to reduce the jury’s verdict. She entered an order directing Merck to pay over $15 million to John and Irma McDarby of Cherry Hill, NJ. The judgment is $4,503,968 for compensation for pain, suffering, disability, $3 million for loss of enjoyment of life, $1.5 million for loss of consortium, $3,968 for ascertainable economic loss under New Jersey’s Consumer Fraud Act, and $9 million for punitive damages. Pre-judgment interest was also allowed in the sum of $464,826 and will continue at over $2,000 per day until Merck pays the judgment or its appeals are denied. An addtional $1.6 million in attorneys fees were awarded to the firm of Weitz and Luxenburg. Jerry Kristal, an attorney with the firm, said: “Merck tells everyone they put patient’s first. However, in truth, they put John McDarby and all the others who they knowingly harmed by Vioxx, last.” An estimated 80,000- 140,000 persons sustained heart attacks or strokes as a result of Vioxx use.
Merck promises an appeal and must post a bond in the full amount of the verdict. Vioxx was withdrawn from the market by Merck when it was found to increase heart attacks and strokes. Merck promises they will try all 27,000 pending cases one at a time, an odd strategy questioned by many on Wall Street and in the legal community. Their general counsel, Kenneth Frazier, was recently replaced, and there is speculation that his removal was due to Merck’s failed litigation strategy. Merck has already been found to have defrauded the public, doctors, and the FDA in at least four trials to date. New Jersey’s Attorney General has been asked to investigate their conduct. Jurors have already awarded hundreds of millions of dollars in verdicts in the 15 trials to date, about half of which were won by Merck and half by those suing Merck for the harms caused by Viioxx. The actual order entered by Judge Higbee is found here.
THIS MATTER having been tried to a jury before the Hon. Carol E. Higbee, P.J.Cv., beginning on March 6, 2006 and continuing on such dates as are reflected in the transcript; and the jury having rendered its verdict for compensatory damages on April 5, 2006, awarding to plaintiffs John and Irma McDarby the amount of Four Million, Five Hundred Three Thousand, Nine Hundred Sixty Eight Dollars ($4,503,968) in compensation for pain, suffering, disability, loss of enjoyment of life ($3,000,000), loss of consortium ($1,500,000) and ascertainable economic loss pursuant to the Consumer Fraud Act ($3,968); and the jury having rendered its verdict for punitive damages on April 11, 2006, awarding to plaintiffs John and Irma McDarby the amount of Nine Million Dollars ($9,000,000); and defendant Merck & Co., Inc. having moved for a new trial, judgment notwithstanding the verdict(s) and remittitur and plaintiffs, John and Irma McDarby having moved for attorneys= fees and costs pursuant to the Consumer Fraud Act (CFA);
IT IS on this __________________ day of ___________________________, 2007
ORDERED that defendant Merck & Co., Inc.=s motion for a new trial, for judgment notwithstanding the verdict(s) and remittitur in this matter be and hereby is DENIED, for the reasons stated in the Court=s Memorandum of Decision dated June 8, 2007; it is further
ORDERED that plaintiffs John and Irma McDarby=s motion for attorneys fees and costs in this matter be and hereby is GRANTED, in part, for the reasons stated in the Court=s Memorandum of Decision dated June 15, 2007; it is further ORDERED that prejudgment interest is awarded on the initial amount awarded pursuant to the Consumer Fraud Act, but not on the trebled amount nor on the amount awarded as attorneys’ fees and costs for the reasons stated in the Court’s Memorandum of Decision dated August 2, 2007 and it is further ORDERED that judgment be and hereby is entered in the Civil Docket in favor of plaintiffs and against defendant Merck & Co., Inc. in the amount of Fifteen Million Seven Hundred Fifty Four Thousand Six Hundred Seventy Seven Dollars ($15,754,677), together with post-judgment interest accruing at an annual rate of 6.0 percent for each day during calendar year 2007 after August 13, 2007, or $2,552 per day, and at the annual rate set pursuant to R. 4:42-11(a) for each calendar year, after 2007, that the judgment remains outstanding, as follows:
1. Four Million Five Hundred Eleven Thousand Nine Hundred Four Dollars ($4,511,904) in accordance with the jury=s verdict for compensatory damages (including treble damages for the $3,968 ascertainable loss pursuant to the Consumer Fraud Act); and
2. Nine Million Dollars ($9,000,000) in accordance with the jury=s verdict for punitive damages; and
3. One Million Six Hundred Fifteen Thousand Five Hundred Forty Eight Dollars ($1,615,548) ($ 2,019,435.25 x 0.80) awarded as attorneys= fees for the Consumer Fraud Act claim;
4. One Hundred Sixty Two Thousand Three Hundred Ninety Nine Dollars ($162,399) ($340,483.71 – [$55,650 (experts) + 108,021.60 (prior lodging amount)] + $26,187 (29 days x 7 rooms x $129) x 0.80) awarded as costs for the Consumer Fraud Act claim;
5. Four Hundred Sixty Four Thousand Eight Hundred Twenty Six Dollars ($464,826) for pre-judgment interest pursuant to R. 4:42-11(b), calculated as follows:
a. On $4,500,000 (compensatory damages):
1) from February 16, 2005 through December 31, 2005 at an annual rate of 3.0 percent, totaling $ 117,990 ($4,500,000 x 0.03 x 0.8740 [319/365]) ;
2) from January 1, 2006 through December 31, 2006 at an annual rate of 4.0 percent, totaling $180,000 ($4,500,000 x 0.04 x 1.0000 [365/365]) ;
3) from January 1, 2007 through August 13, 2007 at an annual rate of 6.0 percent, totaling $166,428 ($4,500,000 x 0.06 x 0.6164 [225/365])
b. On $3,968 (ascertainable loss):
1) from February 16, 2005 through December 31, 2005 at an annual rate of 3.0 percent, totaling $ 104 ($3,968 x 0.03 x 0.8740 [319/365]) ;
2) from January 1, 2006 through December 31, 2006 at an annual rate of 4.0 percent, totaling $ 158 ($3,968 x 0.04 x 1.0000 [365/365]) ;
3) from January 1, 2007 through August 13, 2007 at an annual rate of 6.0 percent, totaling $ 146 ($3,968 x 0.06 x 0.6164 [225/365])
6. Post-judgment interest pursuant to R. 4:42-11(a), accruing at an annual rate of 6.0 percent for each day during calendar year 2007 after August 13, 2007, or $2,552 per day, calculated as follows: $15,754,677 x 0.06 x 0.0027 (1/365)
and
7. Post-judgment interest accruing at the annual rate set pursuant to R. 4:42-11(a) for each calendar year after 2007 that the judgment remains outstanding.
BY THE COURT:
____________________________________
CAROL E. HIGBEE, P.J.Cv .
For more information on this subject matter, please refer to the section on Defective and Dangerous Products.
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