Retired FBI Agent Wins Vioxx Failure-to-Warn Verdict Against Merck

Gerald Barnett spent his career as an FBI agent before retiring to Myrtle Beach, South Carolina. In 1999, a doctor prescribed him Vioxx to relieve chronic neck and back pain, and he took the drug regularly for about two and a half years. In September 2002, at age 58, Barnett suffered a heart attack and underwent quintuple bypass surgery. He later sued Merck & Co., the maker of Vioxx, arguing the drug had caused the heart attack and that Merck had hidden what it knew about the risk.

Barnett filed suit on January 31, 2006 as part of the federal multidistrict litigation consolidating Vioxx injury claims in the Eastern District of Louisiana. With the parties' consent, his case was selected as the second bellwether trial in that litigation, a test case meant to give both sides a read on how juries would view the evidence. Trial opened in New Orleans on July 31, 2006, before Judge Eldon Fallon, with South Carolina law governing the substantive claims. The Los Angeles Times and NBC News both identified Barnett's trial lawyer as Mark P. Robinson Jr. of Newport Beach, California, for whom the Times reported it was a first Vioxx trial.

On August 17, 2006, the jury returned its verdict. It found by a preponderance of the evidence that Merck negligently failed to warn Barnett's treating physicians about the risks of taking Vioxx, and that the drug was a contributing cause of his injuries. Separately, the jury found by clear and convincing evidence that Merck had concealed information about those risks from Barnett's doctors. It rejected his strict liability claim. Based on those findings, the jury awarded Barnett $50 million in compensatory damages. In a second phase, it found Merck's conduct willful, wanton or in reckless disregard of Barnett's rights and added $1 million in punitive damages, for a total verdict of $51 million.

Judge Fallon entered judgment on the verdict on August 30, 2006, but on his own initiative ordered a new trial limited to damages, calling the compensatory award excessive. Merck moved for judgment as a matter of law and, alternatively, for a full new trial, while Barnett and the litigation's plaintiffs' steering committee asked the court to offer a reduced award instead of forcing a retrial. On June 5, 2007, Judge Fallon denied Merck's motions and modified his earlier order: instead of an automatic retrial, Barnett could accept a remittitur of $1.6 million, consisting of $600,000 in compensatory damages and the full $1 million in punitive damages, or proceed to a new trial on damages. The court left the punitive award untouched but held the compensatory figure could not stand. It noted that Barnett was retired and so could not claim lost wages or lost earning capacity, that his losses were primarily noneconomic, and that although his injuries and his sense of insecurity affected his life, he had obtained preventive treatment and had returned to golf and Carolina shag dancing. On that record the court found $600,000 was the most a jury could properly have awarded.

Barnett accepted the reduced award on June 20, 2007, and Judge Fallon entered final judgment for $1.6 million on June 28, 2007. The court denied a further Merck motion for a new trial on August 20, 2007, and Merck told investors in its next quarterly report that it had appealed the judgment. No published appellate decision resolving that appeal has surfaced. Merck announced a nationwide Vioxx settlement program in November 2007, and the public record does not show whether the Barnett judgment was paid, was settled on other terms, or was folded into that program. What stands on the docket is the $1.6 million judgment entered on June 28, 2007.