A federal judge in New Orleans ruled that a recent $51 million verdict against Merck was excessive and ordered that the damages portion of the Vioxx case be tried again.
In the case, which ended earlier this month, the jury found that Merck was negligent in failing to warn plaintiff Gerald Barnett’s physicians about the cardiovascular risks of Vioxx and that this negligence caused his heart attack in 2002. The jury also found that Merck had knowingly failed to disclose information about the drug’s risks, awarding Barnett $50 million in compensatory damages and $1 million in punitive damages.
“No reasonable jury could have found that the plaintiff’s losses totaled $50 million,” wrote Judge Eldon Fallon in a seven-page decision. While he can recover damages for medical bills, pain and suffering and other losses, because Barnett is retired he "cannot recover for lost wages or lost earning capacity."
Fallon stipulated, however, that the jury's findings of liability and deceit by Merck were "reasonable."
A new trial has been ordered on the issue of compensatory damages, and the jury also will reconsider the punitive award by the original jury of eight men.
Merck had argued that Barnett’s gender, age, family history of heart disease, high cholesterol and documented cardiovascular disease increased his risk of a heart attack. Barnett had suffered a “mild” heart attack and continued to lead an active life, Merck lawyer Phil Beck told the jury.
The verdict was the first loss for Merck in a federal Vioxx case, and the damage award is the first against Merck to be set aside. Merck faces more than 14,000 lawsuits related to Vioxx.