Pharmaceutical company Merck is currently fighting lawsuits brought by patients of their drug Vioxx, who claim the drug caused them to suffer severe health complications such as heart attacks and strokes. However, new allegations suggest that Merck may have known about the propensity of the drug to cause these health complications and kept the information hidden—which will make Merck’s defense harder to fight and the damages they may have to pay larger.

A report about to be published by the Journal of the American Medical Association (JAMA) states Merck intentionally deceived the Food & Drug Administration in order to win approval of the drug. The report concludes that Merck deceived the FDA by withholding data showing Vioxx had a higher than reported risk of death and by submitting research reports Merck employees wrote, rather than independent scientists.

Vioxx is no longer on the market since Merck voluntarily withdrew the drug in 2004, but this new report may still lead to further damages against the company. The law has different levels of legal culpability and if the JAMA report is found true, it may raise Merck’s culpability. Although many lawsuits against Merck currently allege negligent testing of the drug, future lawsuits may now be amended to include intentional misconduct. If Merck covered up the data in order to win FDA approval, that can be considered intentional misconduct.

So far Merck has been sued by 26,500 former Vioxx patients and has set aside $4.85 billion to settle the claims. This amount was probably determined after Merck did a cost benefit analysis of taking the claims to trial, and possibly losing. If Merck did intentionally cover up data this settlement fund will surely rise. Not only because the plaintiffs chances of winning have risen, but also because the plaintiffs are more likely to ask for, and receive, a higher damage award.

Damages sought for the cost of a Vioxx patient’s heart attack or stroke (hospital stay, loss of work, etc.) do not increase because Merck may have intentionally covered up data. But damages in a case like this do cover punitive damages—which can be inflated to punish intentional misconduct.