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US judge dismisses $50m damages in Vioxx lawsuit

Florida Fred Charatan

A New Orleans federal judge has thrown out a $50m award made against the drug maker Merck after a former agent of the Federal Bureau of Investigation had a heart attack after taking Vioxx (rofecoxib). The jury’s conclusion on Merck’s liability was reasonable, but its compensatory damage assessment was not, said Judge Eldon Fallon.

In his decision, announced on 30 August, the judge said that the $50m (£26m; €39m) compensatory damages awarded to Gerald Barnett was “excessive under any conceivable substantive standard of excessiveness.” He ruled that a new trial on all damages was necessary.

Judge Fallon held that the plaintiff’s past and future medical bills, pain and suffering, and other intangible losses were legitimate reasons for compensation. But because Mr Barnett has retired he cannot recover lost wages or for lost earning capacity. “Mr Barnett has returned to many of his daily activities. He may have lost 9-10 years of life expectancy,” Judge Fallon wrote.

The retired agent, aged 62 years, had a heart attack in 2002 after taking Vioxx for 31 months. Earlier in August, a federal jury awarded $50m in compensatory damages and $1m in punitive damages. The jury found Merck at fault for misrepresenting or failing to disclose a material fact regarding Vioxx’s safety to Mr Barnett’s doctors.

“We are pleased the court agreed that the compensatory damages awarded were excessive and bore no relationship to the evidence presented in trial and that the court overturned the punitive damages, as well,” Merck’s trial lawyer Phil Beck said in a statement.

Merck is facing about 14 200 product liability lawsuits over Vioxx, and has set aside almost $1bn for litigation. Since Vioxx claims began going to trial, in July 2005, Merck has won five verdicts and lost four. The company has vowed to fight each case separately.

Mr Barnett’s leading lawyer, Mark Robinson, told the BMJ that the judge was not overturning the jury’s findings of Merck’s negligence but its assessment of damages. He pointed out that the new trial, for which the judge had called, would only adjust the proportion of compensatory to punitive damages.