New Jersey Superior Court Appellate Division Rules on Merck's Appeal in Vioxx Cases

In McDarby v. Merck & Co., Inc., and Cona v. Merck & Co., Inc., the New Jersey Superior Court Appellate Division on Monday ruled on two appeals involving products liability and consumer fraud claims against Merck.   The appeals were heard back-to-back, but the court issued a single opinion covering both cases.  Merck appealed from a $15.7 million judgment that awarded compensatory and punitive damages, along with attorneys' fees and costs to the McDarbys on their products liability and consumer fraud claims arising out of Merck's sale of Vioxx, and a $2.27 million judgment for the Conas on their consumer fraud claims for damages of $135, with the remainder as attorneys' fees and costs.  In a lengthy opinion, the court upheld the award of compensatory damages to the McDarbys, rejecting Merck's argument that the products liability act claim was preempted by the Food Drug and Cosmetic Act or by a 2006 preamble  to revised federal prescription drug regulations that contained preemptive language.  The court reversed the punitive damages award, holding that it was preempted by the FDCA.  The court also reversed the award of damages to McDarby and Cona and the attorneys' fees awards pursuant to the consumer fraud act on the basis that those claims were subsumed within the products liability act.

MKS