COMMENTARY: Vioxx Suit & the Greatest Posturing of All Time

After more than three years of telling the world that it did nothing wrong and that it will defend itself case by case for as long as it takes, Merck did a 180-degree turn when it announced Nov. 9 that it had settled most of its Vioxx litigation after only a dozen or so jury trials.

While Merck agreed to pay $4.85 billion to settle about 27,000 lawsuits in state and federal courts around the country filed by people who suffered an ischemic stroke and/or heart attack while taking Vioxx, it steadfastly continued to deny that it withheld material information from the Food and Drug Adminstration during the Vioxx fast-track approval process, that its drug caused heart attacks and ischemic strokes, and that it did anything wrong.

This posturing is a major part or theme for Merck’s defense of Vioxx, approved in May 1999, and it began with the drug’s withdrawal in September 2004. Merck continued through January 2005 to deny that it will have to pay even a penny to Vioxx victims and bolstering that posture by making it well known that the company had not made any provisions for its Vioxx liabilities and has allocated just $604 million solely for future legal defense costs for Vioxx litigation.

In July 2006, Merck continued to contend that it would try every single case, even though the analysts already were stating that the state courts couldn’t handle the trials for the lawsuits already filed much less additional cases.

If Merck did nothing wrong, why did it “blink” and agree to pay nearly $5 billion to settle? Surely not because it was forced to nor due to its financial stake. Merck agreed to pay because, contrary to the posture taken throughout litigation, it knew Vioxx had seriously hurt, maimed and killed thousands of people. Everything Merck did and said was simply to buy time to put it all in perspective, get its corporate arms around the litigation, determine what the true extent of the exposure was and get the plaintiffs to negotiate for less than they originally demanded.

Any settlement is regarded as a compromise and settlement of all claims. The party paying the damages is going to pay more than it wants to, but the party being compensated is going to accept less than it demanded. Further, as part of this peace that is bought, no fault is admitted.

Even though the litigation is settled, the issue of right and wrong is not. Sadly, a bad corporate citizen wins again in the court of public opinion. Conservatives and tort reformers who do not believe in personal injury lawsuits (until they have to file one), much less just compensation, will criticize this settlement as nothing more than the only way out for Merck and will sympathize with Merck for having to cave in to these mass tort trial lawyers’ extortion. Those of us mass tort trial lawyers who represent Vioxx victims and their families and believe in what we do for them know that Merck and all of the other pharmaceutical companies know the truth and know why Merck settled: We are right, and they are wrong.

Trial Timeline for Merck’s Vioxx Litigation

• Aug. 19, 2005: In the first Vioxx trial, a Texas jury awards $253.4 million to the widow of Robert Ernst, who died in May 2001. Texas punitive-damage caps later cut that to about $26 million.
• Feb. 17, 2006: In a retrial after a hung jury, federal jurors in New Orleans clear Merck in the May 2001 death of Richard “Dicky” Irvin. In May 2007, a federal judge orders a third trial, saying a Merck witness misrepresented qualifications.
• April 11, 2006: A New Jersey jury awards $13.9 million to John McDarby, 77, who had a heart attack in April 2004. But it absolves Merck in the case of Thomas Cona, 60, stricken in June 2003.
• April 21, 2006: A jury in Rio Grande City, Texas, awards $32 million to the family of Leonel Garza, 71, who had heart disease for 23 years and died in 2001 after less than a month on Vioxx. Later, the award is reduced to about $7.75 million under state damage caps.
• July 13, 2006: A jury in Atlantic City, N.J., rules Merck is not responsible for a heart attack suffered by Elaine Doherty, 68.
• Aug. 8, 2006: A Los Angeles jury clears Merck in the 2001 heart attack suffered by Stewart Grossberg, 71.
• Aug. 17, 2006: A federal jury in New Orleans orders Merck to pay $51 million to Gerald Barnett, who had a heart attack Sept. 6, 2002. A federal judge later rules that the amount is “grossly excessive,” and in June 2007, Barnett agrees to an award of $1.6 million rather than going to trial again.
• Sept. 26, 2006: A federal jury in New Orleans clears Merck in the case of Robert Garry Smith, 56, of Kentucky, who suffered a heart attack in 2003.
• Nov. 15, 2006: A federal jury in New Orleans clears Merck in the July 2003 heart attack suffered by Charles Laron “Ron” Mason, 64, of Utah.
• Dec. 13, 2006: A federal jury in New Orleans clears Merck in the 2003 heart attack of Anthony Dedrick, 50, of Tennessee.
• Dec. 15, 2006: Jurors in Birmingham, Ala., clear Merck in the 2001 heart attack suffered by Gary Albright, 57.
• March 2, 2007: A jury in Atlantic City, N.J., rules against the widow of Brian Hermans, 44, of Wisconsin but rules Merck violated New Jersey’s consumer fraud law, letting the family recoup Vioxx co-payments and about $2 million in legal fees.
• March 12, 2007: In a retrial granted because of new evidence, an Atlantic City jury awards Frederick “Mike” Humeston, 61, of Idaho $47.5 million in damages.
• March 27, 2007: A jury in Edwardsville, Ill., sides with Merck and rejects claims that Vioxx caused the fatal 2003 heart attack of Patty Schwaller, 52.
• April 13, 2007: A federal court dismisses with prejudice a consolidated securities class action filed by investors in connection with disclosures regarding Vioxx.
• April 10, 2007: A Texas court dismisses a claim that Merck failed to properly warn of alleged risks.
• May 31, 2007: A federal judge sets aside the 2006 Merck verdict in Plunkett v. Merck.
• July 31, 2007: A New Jersey appellate court upholds a dismissal of claims from UK plaintiffs.
• Sept. 9, 2007: The New Jersey Supreme Court denies nationwide class-action status to insurance companies seeking Vioxx reimbursements.
• Oct. 5, 2007: Merck wins Kozic v. Merck, a product-liability case in Florida.
• Nov. 9, 2007: Merck enters an agreement with law firms to settle with more than 95 percent of current claimaints for $4.85 billion.
• May 14, 2008: Merck wins an appellate case in Texas that originally awarded $32 million to plaintiff.
• July 1, 2008: The deadline for enrolled plaintiffs to file for a claims reward as part of a $4.85 million settlement.