Vioxx: Drug Maker's Win is Plaintiffs’ Loss

The once-popular painkiller, Vioxx, now off the market, has been implicated in deaths of millions. As court cases mount against Merck, the manufacturer, verdicts have NOT favored the sufferers. A recent $253.5 million reward on behalf of a plaintiff whose husband died after taking Vioxx has been appealed to a higher court.

To date, of the 45,000 people attempting to sue Merck, none has received compensation. In the meantime, the lawyers defending the company have profited. Merck has spent over one billion dollars in legal fees.The company has refused reaching settlements, believing doing so will acknowledge culprability in victims' suffering. The stock of the company has soared, and Merck remains one the most lucrative pharmeutical company in the US.

Kenneth Frazier, chief executive and legal counsel for Merck, has prospered. He was promoted to president of the global human health division and oversess marketing and 60,000 employees.

Merck claims it is not legally responsible and says patients and their doctors were forewarned of heart risks associated with the drug.

Aware of the escalating pattern of unsuccessful cases and drawn out appeals, lawyers for plaintiffs have withdrawn cases right before scheduled trial dates. Peter Schuck, a law professor at Yale, claims that Merck deliberately complicates cases, discouraging plaintiffs through long-drawn out litigating.

Attempts to file class action cases have failed. Judges have argued that class action are not appropriate because each case is unique and the cause for illness must be examined separately. (The class action tactic used by Erin Brockovich's law firm was what made her fight against the mega utility PG & E successful. A individual plaintiff could not have fought and won!) At present, the backlog of cases against Merck grows. Fewer than 20 cases have reached court in the last two years, when filings began. In the interim, sufferers have died. Should a client win, Merck has until 2010 to begin payments.

Merck knew two years before Vioxx went on the market in 1999 that the drug posed serious side effects. By 2000, Merck’s top scientists confirmed based on clinical trial that Vioxx caused heart complications. Regardless, the company tried to halt the efforts of the Food and Drug Administration to put warning labels on the medication.

In court, Merck blamed victims, claiming their obesity, risk-taking behavior, and genetic predisposition led to heart failures. The company claimed cause and effect was not apparent, and a heart attack was imminent despite drug use.

Mr. Lanier, the lawyer who pleaded the case on behalf of the Texas woman awarded $253.5 million in the death of her husband, says, “Merck’s goal is to manipulate the legal system to deprive justice to tens of thousands of people whose cases can never be heard….Justice delayed is justice denied.”

Despite Merck’s victories, lawyers remain interested in pursuing class action suits. In New Jersey, with a stockpile of 16,000 cases pending, the State Supreme Court is considering a class action case to reduce the caseload. The state attorney general office has already sued Merck, and federal prosecutors are initiating further investigations.

Carol Ernst, the woman in the $253.5 million award case, states of Merck: “they can have all of their money and everything I own if they would just give [my husband] back to me. But they can’t do that.”

Where is the justice? Are class action cases against Merck warranted? Are drug companies responsible for complications associated with their medications? Weigh in on the issue. Post your comments.

For more information on the Vioox case, see the front page story in The New York Times, August 21, 2007.