Plaintiffs attorneys: Mark P. Robinson of Robinson, Calcagnie & Robinson in Newport Beach, Calif.; Andy Birchfield of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.; Don Arbitlit of Lieff, Cabraser, Hermann & Bernstein in San Francisco.
Defense attorneys: Philip S. Beck and Andrew Goldman of Bartlit Beck Herman Palenchar & Scott in Chicago; Ted Mayer of Hughes Hubbard & Reed in New York.
In the second-largest Vioxx verdict to date, a federal jury in New Orleans awarded $51 million to a 62-year-old retired FBI agent who suffered a heart attack after taking Vioxx for two-and-a-half years.
But two weeks after the Aug. 17 verdict, a federal judge ruled that the $50 million in compensatory damages was “grossly excessive,” and ordered a new trial to determine damages.
Although U.S. District Court Judge Eldon E. Fallon focused on the $50 million in compensatory damages, he noted that the 5th Circuit has ruled that if a new trial is ordered for compensatory damages, it must address punitive damages as well.
Mark P. Robinson, a Newport Beach, Calif. attorney who represented the plaintiff, Gerald Barnett, said it is likely the damages trial will be held in February.
The $51 million verdict is the second largest Vioxx verdict to date, surpassed only by $253 million awarded last year by a state court jury in Texas. It was also the only plaintiffs’ victory in the four Vioxx trials held so far in federal court, which is considered a tougher venue for plaintiffs because of strict rules of evidence that can restrict witness lists and exhibits.
So far, Merck has won four federal cases over Vioxx and lost only one – the Barnett case. In state courts, Merck has won four and lost three, for an overall record of eight wins and four losses. One other trial ended in a defense verdict, but the judge later ordered a retrial.
The company faces about 24,000 lawsuits over Vioxx. More than 20 million Americans took Vioxx before Merck pulled it off the market in September 2004 after a long-term study showed it could double the risk of heart attack or stroke if taken for 18 months or longer.
As for scoring the only plaintiffs’ victory in federal court, Robinson said, “I just think it was the right time. Who knows? I had a good client. What makes a verdict, and what makes a plaintiff’s verdict? It’s sometimes hard to tell.”
Heavyweight courtroom bout
A retired FBI agent who lives in South Carolina, Barnett was first prescribed Vioxx in 1999 to relieve chronic neck and back pain. He took Vioxx for 31 months before his 2002 heart attack at age 58. After his heart attack and a quintuple bypass, he continued to take the painkiller for another two years. He stopped taking Vioxx when it was removed from the market.
“He certainly didn’t understand that Vioxx was causing plaque to build up in his arteries,” Robinson said. “I think that’s what we proved.”
The two-and-a-half-week trial pitted two heavyweight trial lawyers against each other: Robinson and Chicago defense lawyer Philip Beck, lead trial counsel for Merck in the federal multi-district Vioxx litigation.
The defense had more than 50 attorneys and staff members working on the case, and Robinson brought 13 people from his firm to the trial.
“I was working every night, and I know Phil Beck was too, until 2 or 3 [in the morning],” Robinson said. “It was very intense, and it really is a heavy battle.”
During the trial, Robinson focused on Merck’s conduct. He used the company’s documents and testimony from its scientists and management to show that Merck knew about the risks of the drug, but failed to warn physicians and consumers.
“Merck’s own documents and depositions of Merck’s management were critical,” Robinson said. “I felt that we proved Merck knew there was a potential heart attack/stroke problem with Vioxx, and frankly didn’t do what they should have done to warn the world about this problem.”
The defense argued that Merck acted responsibly, and also claimed that Vioxx was not the cause of Barnett’s heart attack. Defense experts claimed that his heart attack was probably caused by age, family stress due to his wife’s cancer and a family history of heart disease.
Testimony from the plaintiff’s medical experts showed, however, that Barnett’s long-term use of Vioxx built up the plaque in his arteries. Barnett’s physicians also testified that they wouldn’t have prescribed Vioxx had they known of its risks.
Barnett testified that he was careful to keep his risks as low as possible with daily exercise, a healthy diet and drugs to control his cholesterol. Since the heart attack, he said he has experienced a decline in energy and activity levels.
“He did a very good job for himself,” Robinson said. “He’s a decent man, and a very nice person, as was his wife.”
‘Profit before people’
During the closing argument, Robinson showed jurors Barnett’s medical exams – including angiogram results – that detailed the level of plaque buildup. And he told jurors again that Merck knew of the cardiovascular dangers associated with Vioxx, but marketed the painkiller anyway.
“This company has not taken responsibility in this courtroom,” he said. “They put profit before people.”
An all-male, eight-member jury deliberated for about three and a half hours before unanimously finding Merck liable for failing to warn Barnett’s physicians of the risks associated with Vioxx, and awarding $50 million in compensatory damages. Robinson said he actually tried to keep some women on the jury, but that they were struck by the defense during jury selection.
Barnett said he did not ask for a specific amount of damages, but suggested it should be a “large amount” because of the severity of the plaque buildup caused by Vioxx.
“I told the jurors to be fair and reasonable, and I felt that they were,” he said.
Jurors voted separately on the issue of punitive damages, finding that Merck’s conduct was “willful, wanton or in reckless disregard” of Barnett’s rights, and awarding an additional $1 million.
The judge later determined that the $50 million in compensatory damages was “excessive under any conceivable standard of excessiveness.”
Judge Fallon noted that Barnett is retired and cannot recover for lost wages or lost earning capacity and that, while he may be experiencing a decrease in energy, he has returned to many of his daily activities.
Ex-FBI agent wins Vioxx verdict
Verdict: $51 million total; $1 million in punitive damages
Type of case: Product liability
Trial: 2 1/2 weeks
Deliberations: 6 days
Status: New trial ordered on damages.
Case name: Barnett v. Merck
Date of verdict: Aug. 17, 2006