In a stunning turn about in the Humeston case, a NJ jury today decided that Merck's conduct in the sale and marketing of Vioxx was willfully reckless and awarded the previously defeated Frederick Humeston $20 million in compensatory damages, with the punitive phase yet to follow.
What made this case so interesting and the verdict so stunning is Mr. Humeston already had his day in court back in 2005 and had lost when an Atlantic City jury found in favor of Merck. However, after the trial the now notorious NEJ article disclosing inaccurate results from the VIGOR study was published, and the court decided that Merck's reliance on the evidence in VIGOR to defend themselves in the first case could have swayed the jury, Judge Higbee decided to throw out the not guilty verdict and re-try the case.
Apparently this jury was more impressed with the plaintiff's arguments and decided for him. It will be interesting to see what the punitives end up coming in at, particularly in light of the recent Supreme Court decision that would appear to moderate the amounts that will be allowed in punitive damages.
Either way this verdict is bad news for Merck no matter how you cut it, and it follows after last week's decision in Texas that upheld at $9 million verdict there that was challenged by Merck on the grounds of lack of disclosure by juror's regarding their relationship with the plaintiff. While the win to loss ratio is still essentially 10 to 5 in favor of the company, a 50% success rate on a case with close to 30,000 plaintiffs nationally can't be considered a favorable trend, particularly when the plaintiffs do win, they tend to win big.
I don't think this will prod Merck any closer to the settlement table, but it did halt the momentum that had been favoring the drug company up until now and will certainly energize the plaintiffs who are still learning how to successfully try these cases.