Recent court developments have left the Vioxx litigation picture looking murkier than ever, with judges throwing out both plaintiff's and defense verdicts and a New Jersey jury ruling against perhaps the most sympathetic plaintiff to go to trial so far.

On the plus side for Vioxx manufacturer Merck & Co., U.S. District Judge Eldon E. Fallon of New Orleans this week tossed a $51 million jury award to Gerald Barnett, a former FBI agent who suffered a heart attack after taking the arthritis drug for nearly three years. The trial was Merck's first loss in federal court.

The $50 million in compensatory damages, Fallon said in his order, “is excessive under any conceivable substantive standard of excessiveness.” While the judge was “not troubled” by the $1 million punitives award, he legally had to grant a new trial anyway on both compensatory and punitive damages.

But Fallon upheld the jury's findings on liability, which Merck had challenged as logically inconsistent. The jury found for Barnett on his claim of negligent failure-to-warn, but for Merck on his strict liability claim.

Elsewhere this summer in Vioxx cases, Merck has won jury trials in Los Angeles and Atlantic City, N.J., the latter involving a 68-year-old woman who had taken Vioxx for 2-1/2 years before suffering a mild heart attack in January 2004.

Elaine Doherty was the first female user to go to trial and the experts predicted she would be the most sympathetic plaintiff Merck has faced so far. "Of all the cases that have been tried, it's by far the most compelling," one plaintiff's lawyer gushed.

The jury deliberated for nine hours before finding that Merck had not failed to properly warn doctors of Vioxx's health risks.

But in a setback for Merck, Superior Court Judge Carol Higbee in Atlantic City ordered a new trial for postal worker Frederick “Mike” Humeston. She cited evidence uncovered since a November 2005 defense verdict cleared Merck of liability for Humeston's heart attack.

In the nine Vioxx trials so far (see table below), juries have ruled five times for Merck and four times for the plaintiff.

By Matthew Heller
8/31/06