NEW ORLEANS – 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 Monday.
"No reasonable jury could have found" that Gerald Barnett was entitled to $50 million in compensatory damages from Vioxx maker Merck & Co. (MRK) because of the heart attack he suffered in 2002, U.S. District Judge Eldon E. Fallon ruled.
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, italicizing "may".
Barnett's attorney, Mark Robinson, said he had not seen the ruling and could not comment until he read it and spoke with Barnett.
The new trial is limited to the question of damages, and the 5th U.S. Circuit Court of Appeals has ruled that if a new trail is ordered for compensatory damages, it must also include punitive damages, he wrote. The jury awarded Barnett $1 million in punitive damages in addition to the $50 million compensatory damages.
On Aug. 17 in Fallon's New Orleans courtroom, a jury found 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 in compensatory damages. And it added $1 million in punitive damages, saying Merck "acted in wanton, malicious, willful or reckless disregard for the plaintiff's rights."
Fallon did not overturn the jury's findings against Merck, only the damages.
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