by Robert A. Schwartz, Attorney at Law
Nov. 12, 2007
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.
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