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$26.1M judgment in Ernst v. Merck appealed; Barnett damages to be retried

In a statement, Merck said "Among several independent grounds for reversal, the company will argue that there was insufficient evidence that Mr. Ernst suffered an injury due to Vioxx and that it was improper to allow testimony by a previously undisclosed witness midway through the trial." (Linda Johnson, AP/Business Week, Sep. 21). Earlier press accounts falsely stated that the judgment was for $253 million, which was the amount of the verdict before the court entered judgment. Why did it take Merck so long to appeal? See our coverage of that question Nov. 28 and Jun. 16.

In other news, (as Michael Krauss noted on Aug. 30) Judge Fallon threw out the $51 million damages award in Barnett v. Merck, correctly noting that it was "excessive under any conceivable substantive standard of excessiveness." ("Judge Calls $51 Million Award Against Merck 'Grossly Excessive'", Wall Street Journal, Aug. 31). In one of the mysteries of American law, because the $50 million "compensatory" damages award was based on "passion or prejudice," the punitive damages award of $1 million was also thrown out—but Fallon refused to presume that the jury's factual findings are not similarly afflicted with "passion or prejudice," even though they were made at the same time, so the liability verdict stands, at least until Merck can ask the Fifth Circuit for review, which won't happen until judgment can be entered on the damages trial.

Interesting trivia unremarked upon by the press that can be found in Judge Fallon's opinion: Barnett's attorney argued that punitive damages should be awarded because "otherwise Merck would continue to defend itself in courtrooms around the country." (An objection was sustained.) Similar trial tactics: Sep. 8.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.