Vioxx plaintiff can get damages or retry

Vioxx plaintiff can get damages or retry

	Published : Wed, 06 Jun 2007 18:43 By : Agencies Print this Story

NEW ORLEANS (AP) - A retired FBI agent who says the once-popular painkiller Vioxx caused his heart attack in 2002 can either accept $1.6 million in damages or have a new jury decide what his damages should be, a federal judge has ruled.

U.S. District Judge Eldon E. Fallon last year had overturned the jury's $51 million award to Gerald Barnett and ordered a retrial on damages, finding that $50 million to compensate for his injuries was excessive.

Attorney Mark Robinson, who had asked the judge to propose a reduced damage award as an alternative to a retrial, said Wednesday that he would recommend that Barnett accept the damages set Tuesday by Fallon.

'He knows his circuit and what's acceptable. I have to respect his opinion,' Robinson said. He said his reasoning when he made his request was, 'What if we got another verdict, and it's more than what he's going to accept anyway, or what the 5th (U.S.) Circuit (Court of Appeals) would accept? What are we doing?'

As he had when he ordered a new trial on damages, Fallon said the jury's $1 million punitive damage award was reasonable but the $50 million compensatory damage award was excessive.

Barnett's recovery has been good and, since he was retired when he suffered the heart attack, he cannot get lost wages or earning capacity, the judge said in his August ruling.

Considering Barnett's testimony and evidence, $600,000 is the largest reasonable compensatory damage, Fallon ruled Tuesday.

Vioxx maker Merck & Co.'s outside counsel, Ted Mayer, said the company plans to appeal any final ruling in this case because it does not believe its drug was responsible for Barnett's heart attack. Merck no longer sells Vioxx.

Robinson said he finds it significant that Fallon upheld the jury's verdict and its punitive damage award. 'A jury ... found punitive damages, found fraud. Upheld by a judge, that's a strong message to the company,' he said. I think they need to take a real good look at that.'