On August 30, a federal district judge overturned a $50 million compensatory damage award in a products liability case against Merck involving Vioxx. The judge found that the damages awarded by the jury were “grossly excessive” and ordered a new trial on the issue of damages. The judge did not overturn the findings of liability against Merck.
On August 17, a jury had found in favor of the Plaintiff, Gerald Barnett, that Merck "knowingly misrepresented or failed to disclose" information about Vioxx to his doctors. It said Barnett, should get $50 million in compensatory damages. It also added $1 million in punitive damages, saying Merck "acted in wanton, malicious, willful or reckless disregard for the plaintiff's rights." The case was tried in the U.S. District Court for the Eastern District of Louisiana.
Mr. Barneet is a retired FBI agent who suffered a heart attack after taking the drug. U.S. District Judge Eldon E. Fallon ruled that "no reasonable jury could have found" that Mr.Barnett was entitled to $50 million in compensatory damages from Vioxx maker Merck & Co. because of the heart attack he suffered in 2002. Compensatory damages include past and future medical bills, his pain and suffering and other intangible losses are legitimate reasons for compensation. Life expectancy and future earning capacity are also taken into consideration. The judge wrote that while he may have lost nine or ten years of life expectancy, he is retired; therefore lost wages and earning capacity have no bearing on the damages. The court also noted that while his energy may be reduced, he appears to have returned to many of his daily activities.
The new trial on damages will include both compensatory and punitive damages because the 5th U.S. Circuit Court of Appeals has preciously rules that if a new trial is ordered for compensatory damages, it must also include punitive damages.
Clinical studies have shown that patients who took Vioxx for 18 months or longer had an increased risk of suffering a heart atack or stroke. Merck voluntarily recalled Vioxx from the market in September 2004. This year, Merck revealed that data from a one-year follow-up study suggests that the cardiovascular risks associated with Vioxx begin after four months instead 18 months. Merck also released data last week showing that the risks of taking Vioxx continued for one year after patients discontinue use. The company has stated; however, that the data, “do not establish that the risk for Vioxx starts earlier than had been previously reported.” Although the number of cardiovascular events at four months was not statistically significant, the data does show an increasing trend from the four-month point.
There are currently over 14,000 lawsuits related to Vioxx involving over 27,000 plaintiffs, in various federal and state courts. Merck faces potentially billions of dollars in liability. It has been reported that Merck’s national defense strategy is to try every single case. An article published on August 18th in AFX news limited estimates that Merck will spend about $1 billion a year for the next ten years on Vioxx. It is thought that money will be spent on legal fees and settlements, not set aside for payments to plaintiffs. The article also theorized that as large and wealthy as Merck is, it can absorb that billion dollars without much effect. As of August 30th, the company had gone to trial in nine cases, winning 3, losing 3, and 3 including this one have been reopened. Three more Vioxx cases are scheduled for the U.S. District Court in New Orleans in the coming months.
Published On: September 08, 2006