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Rulings in Barnett and Plunkett Vioxx cases

Judge Fallon issued two rulings in the MDL Vioxx docket in the last week.

In Barnett, he accepted the plaintiffs' request for remittitur as an alternative to a new trial on damages, and held that compensatory damages be limited to $600,000. As we noted when the original $50 million award was tossed:

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." 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´┐Żbut 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.

Except, at least for now, even the $1 million punitive award stands. Plaintiffs have signalled that they will accept the new award, and Merck will appeal to the Fifth Circuit. [Lattman; WSJ]

In Plunkett, which has had one mistrial (Dec. 13, 2005) and one defense verdict (Feb. 18, 2006), there will now be a third trial. A Merck expert witness was a bit too Clintonesque in his testimony: when asked by a Merck attorney if he was board-certified, he stated that he had passed his board exams. Except, as a later New Jersey trial cross-examination revealed, his certification had expired, something he did not testify to in federal court. Board certifications are of dubious materiality, especially here where the expert had the certification once and got himself certified again later, but since it was Merck who put the question at issue, they suffer the consequences of an answer the plaintiffs could spin as misleading, and a new trial was granted.

One wonders if the plaintiffs' attorneys already knew of the certification issue at trial, and chose to sandbag the question so they would get a free bite at the apple in a motion for retrial, much like a football team that sees a defensive end jump offsides will quick-snap and take the free down. But when Judges Higbee and Fallon have amply demonstrated that they're going to make close (and even not-so-close) judgment calls for the plaintiffs, a defense team needs to avoid putting themselves in a position where the judge can take a legitimate defense verdict away from them. The Plunkett case is especially meritless (it's ambiguous if decedent Dickie Irvin was even taking Vioxx), but Merck will have to engage in the expense of a third trial now.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.