Once again, a judge has tossed a Vioxx win aside. This time, US District Court Judge Eldon Fallon, who oversees all Vioxx litigation in federal courts, threw out a $51 million damage award against Merck last year, reversing his own decision and awarding $1.6 million to a former FBI agent who blamed his 2002 heart attack Vioxx. He ruled that Gerald Barnett can accept a $1.6 million award or get a new trial on his claims. The award includes $600,000 in compensatory and $1 million in punitive damages.

“I’m going to recommend that my client accept” the award, Mark Robinson, a Los Angeles lawyer who represented Barnett at trial. tells Bloomberg News. “No appeals court is going to be able to say that amounts to an excessive verdict.”

Before today’s decision, Merck won 10 and lost five of the Vioxx cases that went to trial since July 2005. Merck plans to appeal.

In Barnett’s case, jurors found Merck failed to warn Barnett’s doctors adequately about the dangers of Vioxx and that Merck “knowingly misrepresented” facts about the drug. They awarded Barnett, a South Carolina resident, $50 million in compensatory damages and $1 million in punitive damages.

Merck had sought to have Barnett’s verdict thrown out entirely. Fallon denied that request, ruling in August 2006 that the company was only entitled to a new trial on damages. The company then filed another motion to have the verdict set aside or the case retried. Robinson says he offered to allow Fallon set a reasonable award in the case to avoid a retrial.

Fallon said in his ruling that he still believes the jury’s $50 million compensatory award to Barnett was excessive, Bloomberg reports. Still, he said, the award wasn’t “the result of passion or prejudice.” The judge said he believed “in his best judgment that $600,000 is the most the jury could have properly awarded” Barnett for his injuries, according to the eight-page ruling.

Source: Bloomberg News