Merck Vioxx Litigation Score Card

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By Evelyn Pringle (about the author) Page 7 of 9 page(s)

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She also testified that she told various Merck officials about her concerns, but did not try to influence them with her feelings. "I tried to avoid giving my opinion because it was their opinion that ruled the day," Dr Shapiro said.

However, one Merck scientist asked her to "do additional analysis to explore the data because the trends were disconcerting," she testified.

Merck attorneys told the jury that Mr Grossberg's "health history is behind his heart attack, not Vioxx," and that his use of the drug was "sporadic and intermittent."

In the end, the jury ruled in favor of Merck.

On August 17, 2006, in the second federal case to go to trial, a jury in New Orleans ordered Merck to pay $51 million to 62-year-old retired FBI employee, Gerald Barnett, who suffered a heat attack on September 6, 2002, after taking Vioxx since 2000.

A resident of South Carolina, Mr Barnett used Vioxx for pain caused by injuries he received in a car accident.

He was awarded $50 million in compensatory damages and the jurors added another $1 million in punitive damages after finding that Merck "acted in wanton, malicious, willful or reckless disregard for the plaintiff's rights."

The New Orleans jury said Merck had "knowingly misrepresented or failed to disclose" a material fact to Mr Barnett's physicians and that doctors in the case were not at fault.

On the verdict form, the jury had the opportunity to assign a percentage of fault to the various physicians but the panel assigned all blame to Merck.

Mr Barnett's attorney, Mark Robinson, said the jury's award was "appropriate" and sends a message to Merck and other drug companies.

At the end of the trial, Judge Fallon said that he would hold three more federal trials this year and then decide how future cases will be handled. He said he will meet with Merck lawyers and plaintiffs' attorneys after the fifth trial to see if a resolution can be reached in the federal litigation, which includes roughly 5,700 cases filed on behalf of 16,100 plaintiffs.

Merck attorneys vowed to appeal the Barnett verdict, but in a stroke of luck for Merck, on August 30, 2006, Judge Fallon ordered a new trial to reassess damages, but left intact, the jury finding that Merck was responsible for Mr Barnett's heart attack..

"It is the $50 million compensatory damage award which the court finds grossly excessive," Judge Fallon wrote in an August 30, 2006 decision. "The plaintiff is retired," he said, "and therefore cannot recover for lost wages or lost earning capacity."

"No reasonable jury could have found" Gerald Barnett was entitled to $50 million in compensatory damages because of the heart attack he suffered in 2002, Judge Fallon ruled.

Mr Barnett's past and future medical bills, his pain and suffering, and other intangible losses are legitimate reasons for compensation, Judge Fallon stated.

But, since he is retired, the Judge continued, 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.

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Evelyn Pringle is a columnist for OpEd News and investigative journalist focused on exposing corruption in government and corporate America.

The views expressed in this article are the sole responsibility of the author
and do not necessarily reflect those of this website or its editors.

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