Healthy Skepticism Library item: 11162
Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.
Publication type: news
McConnaughey J.
Merck challenges U.S. judge's award revision in federal Vioxx case
Associated Press 2007 Jul 29
http://news.findlaw.com/ap/o/51/07-27-2007/d211000c35745243.html
Full text:
(AP) – NEW ORLEANS-A federal judge usurped a jury’s job when he threw out a $51 million (€37 million) award and proposed a lower amount in the case of a retired FBI agent who won a lawsuit claiming the painkiller Vioxx had caused his heart attack, the drug’s manufacturer contends.
Merck & Co.‘s request for a new trial is among several issues brought by the company that will be heard before U.S. District Judge Eldon E. Fallon on Friday.
Jurors in Gerald Barnett’s case decided he should get $50 million (€36.6 million) to compensate him for injuries from the 2000 heart attack and $1 million (€730,000) in punitive damages against Merck. Fallon ruled that the compensatory damages were unreasonable, since Barnett was retired and made a good recovery.
As an alternative to a retrial on damages, Barnett asked the judge to suggest a more reasonable award, and accepted Fallon’s recommendation: $1 million (€730,000) in punitive damages, $600,000 (€439,528) in compensatory damages.
Merck contends that by doing so, Fallon usurped a job that should have been done by a jury.
“Because there is no way to determine what damages the jury concluded Mr. Barnett suffered, let alone what compensation it awarded for each component of his damages, there is no way to lop off – or even calculate – the `excessive’ part of the jury’s award,” the company said.
Fallon also will hear Merck’s request for permission to immediately appeal his ruling that the U.S. Food and Drug Administration’s approval of a drug label does not protect manufacturers against lawsuits claiming that its warnings about possible side effects were inadequate.
The FDA contends that since the rules define what must be stated on the labels, they pre-empt state law. Therefore, claims that a company’s warnings were inadequate under state law would be invalid, FDA says.
Fallon ruled July 3 that FDA’s stand “is entirely unpersuasive,” and the lawsuits may proceed. Merck wants to appeal now, rather than after final rulings in two cases on which Fallon ruled.
