Vioxx User Has Choice of $1.6 Million or New Trial

A former Vioxx user who won $51 million in his lawsuit against drug manufacturer Merck & Co. must decide between accepting a greatly reduced $1.6 million award or having a retrial of his claims.

Gerald Barnett says he had a heart attack at age 58 in 2002 after taking Vioxx for three years to relieve chronic neck and back pain.

Merck pulled the drug off the market in late 2004 in the wake of mounting evidence that it increased the risk of heart attacks and strokes.

A jury in the U.S. District Court for the Eastern District of Louisiana awarded Barnett $1 million in punitive damages and $50 million compensatory damages last September.

Shortly afterward U.S. District Judge Eldon Fallon ordered a new trial on damages, describing the compensatory award as "excessive under any conceivable standard of excessiveness."

The judge's recent order says Barnett can accept a $600,000 compensatory award along with the $1 million in punitives or start a new trial.

He said the former FBI agent incurred some out-of-pocket medical expenses, but his losses were primarily noneconomic.

"Considering the entire record, the court finds that the evidence does not justify a $50 million award for Mr. Barnett's medical expenses and noneconomic damages," the order says.

Judge Fallon also denied Merck's post-verdict motion for judgment as a matter of law, rejecting its arguments that Barnett lacked evidence sufficient to prove his case and that the verdict was tainted by "passion and prejudice."

"The court takes this opportunity to find specifically that the jury's award was not the result of passion or prejudice, although it was excessive," the judge said.

He also rejected Merck's motion for a new trial on all issues. The company had based its request on the jury's purportedly inconsistent findings that Merck was not liable on Barnett's strict liability but had negligently concealed Vioxx's risks from his doctors.

Noting that the case is being decided in accord with the law of South Carolina, Barnett's home state, Judge Fallon said courts there have held the doctrines of strict liability and negligence to be distinct theories of recovery.

"The denial of liability under one of these doctrines does not automatically preclude the imposition of liability under the other," Judge Fallon said, citing Bragg v. Hi-Ranger, 42 S.E.2d 321, 325-26 (S.C. Ct. App. 1995).

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