Judge Orders New Trial on $50 Million Award in Vioxx Case

The $50 million (euro39 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 in New Orleans 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 new trial is limited to the question of damages.

A jury had found on Aug. 17 that Merck “knowingly misrepresented or failed to disclose” information about Vioxx to Barnett’s doctors. It said Barnett, of Myrtle Beach, S.C., should get $50 million (euro39 million) in compensatory damages. It also added $1 million (euro780,000) in punitive damages, saying Merck ‘”acted in wanton, malicious, willful or reckless disregard for the plaintiff’s rights.”

Barnett’s past and future medical bills, his pain and suffering and other intangible losses are legitimate reasons for compensation, 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. Fallon did not overturn the jury’s findings against Merck.

Merck shares rose 22 cents to $41.11 in afternoon trading on the New York Stock Exchange.