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Judge overturns $50 million Vioxx award
New Orleans judge dismisses damages that Merck was ordered to pay Vioxx plaintiff.
By Aaron Smith, CNNMoney.com staff writer

NEW YORK (CNNMoney.com) -- A federal judge threw out the $50 million in damages awarded a Vioxx plaintiff in a recent lawsuit against the drugmaker Merck.

Judge Eldon Fallon of U.S. district court in New Orleans, who is presiding over all federal trials in the ongoing Vioxx litigation, overturned the jury's award for plaintiff Jerry Barnett, a former patient who blames the drug for his heart attack.

merck_vioxx.03.jpg

Barnett prevailed against Merck when the jury found the drugmaker negligent on Aug. 17. A court spokesman said the verdict is not changed, but the judge has ordered a new trial to determine damages.

The award of $50 million is "excessive under any conceivable substantive standard of excessiveness," according to Fallon's court documents, which noted that Barnett is retired, "and therefore he cannot recover for lost wages or lost earning capacity."

"While the plaintiff may be experiencing a decrease in energy, it appears that he has been able to return to many of his daily activities," read Fallon's document.

Mark Robinson, Barnett's attorney, said he was looking forward to a new trial and the new opportunity to seek punitive damages. "Obviously, my client would like resolution, but I'm a trial lawyer, and I'm going to continue to represent my client and continue to fight this [ruling]," he told CNN.

Separately, Fallon dismissed two other Vioxx-related lawsuits against the drugmaker Merck because the plaintiffs are not from the United States, according to the company and the court.

Fallon tossed out two lawsuits from plaintiffs in Italy and France. The judge said the plaintiffs should file suit in their own countries.

"We believe this is the correct ruling," said Merck outside counsel Ted Mayer in a press release. "It makes little sense to try these cases here in the United States."

A source at the New Orleans court said Judge Fallon made the ruling on Thursday because it would be "more convenient" to try the cases in the plaintiffs' home-country judicial systems.

Merck (down $0.09 to $40.80, Charts) pulled Vioxx, an arthritis painkiller, off the market in 2004 after a study showed that the drug increased the risk of heart attacks, evaporating $2.5 billion in annual sales.

Since that time, some 14,200 cases have been filed against the company by former Vioxx users and their families, who blame the drug for causing heart attacks.

Merck has consistently denied all accusations of negligence and wrongdoing and vowed to fight all cases one by one. The company, based in Whitehouse Station, N.J., has won five courtroom battles and lost four, but one of these courtroom victories was recently dismissed by a New Jersey judge.

- CNN's Christopher Browne contributed to this report.


Merck's bad day in court Top of page

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