Judge Calls for New Trial in Vioxx Case
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NEW ORLEANS (AP) – The $50 million compensatory damage award in a federal Vioxx case this month was “grossly excessive,” and a new trial must be held to decide damages for a retired FBI agent who suffered a heart attack after taking the painkiller, a federal judge ruled Wednesday.
“No reasonable jury could have found” that Gerald Barnett was entitled to $50 million in compensatory damages from Vioxx maker Merck & Co. because of the heart attack he suffered in 2002, U.S. District Judge Eldon E. Fallon ruled.
The ruling does not affect the Aug. 17 verdict that New Jersey-based Merck is liable for Barnett’s heart attack because it negligently failed to warn him that its blockbuster drug increased the risk of heart attacks, and that it actively hid such dangers.
Barnett’s attorney, Mark Robinson, said he had not heard about the ruling and could not comment on it until he had read it and talked to Barnett, 62, of Myrtle Beach, S.C.
A call seeking comment from Merck was not immediately returned.
The jury found that Merck “knowingly misrepresented or failed to disclose” information about Vioxx to Barnett’s doctors. It said Barnett should get $50 million in compensatory damages. It also added $1 million in punitive damages, saying Merck “acted in wanton, malicious, willful or reckless disregard for the plaintiff’s rights.”
The jury’s liability ruling is reasonable, Mr. Fallon wrote. “All three of the plaintiff’s claims revolve around the safety risks of Vioxx, what Merck knew about any such risks, when Merck knew this information and what Merck should have done about it,” the judge wrote.
But the amount of compensatory damages “is excessive under any conceivable standard of excessiveness,” he wrote.
Barnett’s past and future medical bills, his pain and suffering and other intangible losses are legitimate reasons for compensation, Mr. Fallon wrote.
But, since he is retired, lost wages and earning capacity have no bearing on the damages _ and, while his energy may be reduced, he apparently has returned to many of his daily activities. He may have lost nine or 10 years of life expectancy, Fallon wrote.
The judge noted that the 5th U.S. Circuit Court of Appeals has ruled that if a new trial is ordered for compensatory damages, it must also include punitive damages so that the same jury considers both.
Merck shares rose 30 cents to $41.19 in afternoon trading on the New York Stock Exchange.
