The Tortellini

Merck 10, Vioxx plaintiffs 5

So much for the vaunted "generous jurors" of the infamous Madison County judicial hellhole...I've long argued that jurors are smarter than anyone ever gives them credit for. Not that I don't think Merck shouldn't be punished for its handling of Vioxx. But when you have a 52-year-old plaintiff who weighs 300 pounds and stands five feet two, I think any jury would have trouble concluding that it was Vioxx that prompted her heart attack...

Another requiem for the trial bar

Business Week's cover for the new year joins the chorus of media voices declaring the trial lawyer dead and buried, blaming all the usual suspects: business lobbyists, tort reform, and the lawyers themselves. One additional factor many of these stories have overlooked: a fair number of high-power plaintiffs' lawyers are losing their shirts on Vioxx litigation....

The Vioxx Bust

I think my prediction that Vioxx litigation would prove to be a bust is proving to be all too accurate. Today, another Merck verdict, this time in Alabama, just the sort of state court "hellhole" that tort reformers always claim have never seen a plaintiff they couldn't love. Not a good sign for plaintiffs lawyers. The jurors report that the plaintiff in this case just had too many other risk factors for heart disease to blame Vioxx for a heart attack, what is becoming a common refrain. Of course, these are exactly the people who should not have been taking Vioxx, but from the perspective of a jury trying to assign blame, this is the same conclusion most sensible people would come to. Unless the plaintiff's lawyers have a bunch of 30-year-old triathletes in the pipeline, Vioxx litigation is pretty much doomed, I think.

Another Merck win

Jeez Louise! Are the plaintiff lawyers representing Vioxx clients out of their minds? Out of the tens of thousands of Vioxx lawsuits that have been filed, with all the clinical data showing that the pain-killer probably injured or killed lots of people, can't they find one decent plaintiff? It's not enough that most of the Vioxx vics who've lost at trial have been elderly obese people with histories of heart disease. But now the lawyers have to come up with an alleged former cocaine user. At least he was a little younger than the others. But still, on top of the alleged drug use, the guy suffered from diabetes and high cholesterol and had a family history of heart disease, all well-known risk factors for the heart attack he blamed on the pain killer.

OK, sure, given his history, he definitely shouldn't have been taking Vioxx. But did his lawyers really think the jury would overlook all the other contributing factors, or did they just not do their homework? Brother. No wonder tort reformers have so much material to work with. At the same time, though, these cases do sort of reaffirm my faith in the legal system. For all the scorn heaped on American juries by those very same tort reformers, it's clear from cases like these that the average citizens sitting in the jury box are doing their jobs quite well. ..

Merck's Latest Win

A New Orleans federal jury took only 90 minutes yesterday to clear Merck in the latest Vioxx trial. The verdict brings the scorecard ($) to Merck 6, plaintiffs 4. While there are still 24,000 more cases to go, I don't think the record is going to get that much better for the plaintiffs.

Merck's conduct in marketing Vioxx was patently awful, and the drug was demonstrably dangerous. But it's easy to say that Vioxx caused 100,000 deaths a year; it's nearly impossible to identify precisely which ones. Historically, plaintiffs have tanked before juries when their drug-related injuries were also common afflictions among non-drug users. Parlodel is the classic case. The drug company marketed the drug to post-partum women to suppress lactation. There was a lot of evidence that Parlodel can cause strokes, but so does just having a baby. When the cases got in front of juries, the drug company won most of them. (They also kept a lot of the scientific evidence out as well, but that's a different issue.)

One reason fen-phen litigation was so successful was that the diet drug caused a really specific and rare disease, primary pulmonary hypertension, so it was easy to see the causation. But Vioxx causes heart attacks and strokes, the leading cause of death in this country. Nearly 60 percent of all Americans die of something related to cardiovascular disease.

Looking at the profiles of some of the Vioxx plaintiffs, it's easy to see why Merck has chosen to fight them. Charles Mason, the 64-year-old Utah man whose claimed Vioxx caused his heart attack in the latest federal trial, was 5 foot 9 and weighed 228 pounds. Mason was clinically obese, but his lawyer told Bloomberg, "None of his treating physicians ever considered him at high risk for cardiovascular disease.''

It sounds like Mason had a good case--for a malpractice claim. But his Vioxx suit seems pretty weak, given that obesity is a well-known contributor to heart disease and one that the jury was no doubt familiar with. Maybe the plaintiffs' lawyers have a bunch of skinny, 25-year-old stroke victims waiting in the wings, but if they don't, I suspect that in the end, the Vioxx litigation is going to be a pretty big washout.