HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Monday, November 12, 2007

Merck's Vioxx Settlement

Last week, Merck announced that it  The New York Times writes about the settlement as a corporate victory for Merck.  It reports,

For the drug maker Merck to pay almost $5 billion to settle lawsuits from people who contended that the painkiller Vioxx caused their heart attacks and strokes may not seem like a corporate victory.  But it is, according to lawyers and drug industry analysts who have followed the Vioxx litigation since Merck stopped selling the drug in September 2004, after a clinical trial showed it raised the risk of strokes and heart attacks.  At a fraction of the price that analysts initially estimated it would pay, Merck, one of the largest American drug makers, hopes to put one of the most troubling episodes in its history behind it.

The settlement amount it announced yesterday, $4.85 billion, represents only about nine months of profit for Merck, whose stock rose 2.3 percent on news of the agreement, even as the broader stock market was sharply lower. Two years ago, some analysts estimated that Merck would have to pay as much as $25 billion to settle Vioxx claims.

The success of Merck ’s strategy — fighting every claim against it in court for several years and only then agreeing to a blanket settlement — could encourage other pharmaceutical companies to take the same route in other lawsuits, independent legal experts say. Merck has won most of the cases to reach juries, as plaintiffs’ lawyers have struggled to convince jurors that Vioxx caused the heart problems their clients suffered.

Clinical trials prove that Vioxx raises the risk of heart attacks, but linking its use to any one person’s problems is difficult, especially when the person had other risk factors like smoking.  More broadly, the case shows that after years of aggressively lobbying against trial lawyers, corporate America has regained substantial leverage against plaintiffs and their lawyers — whose lawsuits bankrupted Dow Corning and the asbestos industry in the 1990s. In many states, changes governing lawsuits have made claims tougher to bring and win, while much public opinion has turned against plaintiffs.  “The law governing class-actions has grown decidedly less favorable than it was,” said Peter Schuck, a professor at Yale Law School who specializes in complex litigation. . . .

Of course, what is good news for Merck may be less so for the patients who suffered heart attacks or strokes after taking Vioxx. Depending on how many claims are filed to the settlement fund, those people will receive payments averaging about $120,000 each before legal fees and expenses, which could swallow about 40 percent of their payments.  Plaintiffs are not required to accept the settlement. But under terms of the agreement their lawyers must encourage them to do so — and would not be allowed to represent those clients if they insisted on bringing their cases to court. . . .

Dr. Eric Topol, a cardiologist who in 2001 was co-author of a paper in The Journal of the American Medical Association warning of the risks of Vioxx, said he believed that the payment amounted to little more than a slap on the wrist for Merck.  “I think they’ve gotten off quite easily, frankly, for the problems that they’ve engendered,” Dr. Topol said. 

The Wall Street Journal's Health Blog has more on the numbers here and here.  This Vioxx settlement should leave Merck more time to deal with the fallout from its AIDs vaccine

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