NEW ORLEANS – A South Carolina man whose $51 million Vioxx damage award was overturned as excessive will accept the $1.6 million suggested by the trial judge rather than go to a second jury. 

The decision by Gerald Barnett, who blames the Merck & Co. painkiller for a heart attack he suffered in 2002, effectively cancels a trial on damages that had been set to begin Oct. 29 before U.S. District Judge Eldon Fallon.

Fallon upheld a jury's August 2006 verdict against Merck, but found the award to Barnett – $50 million – excessive for a retiree who made a good recovery and suffered "primarily noneconomic" losses. Barnett is from Myrtle Beach, S.C.

Barnett's lawyer, Mark Robinson, on Wednesday filed a one-sentence statement accepting Fallon's recommendation.

The total included $1 million in punitive damages and $600,000 in compensatory damages.

Ted Mayer, lawyer for Whitehouse, N.J.-based Merck, had argued damages could not be reconsidered on their own, so if a second jury trial would have to reconsider the entire case.

Mayer has said the company will appeal any final ruling because it does not believe its drug was responsible for Barnett's heart attack.



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