I saw the other day that Merck lost another Vioxx trial, with the jury awarding $4.5 million to a man who had a heart attack after taking Vioxx. I won't get into my problems with this type of litigation today, but I did in many other posts like this one (and this and this).
My question today revolves around the fact that this trial is now going into the punitive damages phase, where the jury will decide if Merck owes more money as a punishment not narrowly for this man's heart attack (for which they are paying $4.5 million) but more generally for Merck's actions in bringing the drug to market at all.
Here's the problem: A jury in Texas already hit Merck with $259 million in punitive damages*. This number was based on a lot of testimony about Merck's sales and profits from Vioxx, so it was presumably aimed at punishing Merck for "errors" in their whole Vioxx program. So if that is the case, how can Merck end up facing a jury again coming up with a separate punitive damage award for the same "crime"? Sure, it makes sense that Merck can owe actual damages to individual claimants in trial after trial. But how can they owe punitive damages for the whole Vioxx program over and over again? Aren't they being punished over and over for the same misdeed, violating their Constitutional protection against double jeopardy?
I'm not sure what the solution is. One approach, of course, would be to say that punitive damages can only be awarded once, which would effectively mean they would go to the first plaintiff to win his case. I am not sure this makes a lot of sense from a public policy point of view, but it would be highly entertaining to watch tort lawyers knocking themselves over and maneuvering to be the first verdict, knowing that if they are first,they would get 30% of hundreds of millions of dollars but if they are second they get 30% of much much less, since punitive damages are always far larger than actual damages.
*Under Texas law, this amount will likely be reduced, but it doesn't change the fact of double jeopardy