Thursday, October 29, 2009

Vioxx Verdicts

I am collecting all the Vioxx verdicts - here is what I have so far. I welcome reader corrections and information about the current status of all of these cases - have they been appealed to higher courts? settled and if so for how much? or is this the final disposition? 

  1. Ernst -- TX -- $26,100,000 on 8/19/2005 -- Reversed on appeal 
  2. Humeston -- NJ -- Defense verdict in Nov. 2005 -- New trial ordered -- $47,000,000 verdict 
  3. Plunkett -- EDLA -- Defense verdict on 2/17/2006 -- New trial ordered
  4. Cona -- NJ -- 2,270,000 verdict on consumer fraud and defense verdict on tort in Apr. 2006 -- appealed and $135 award upheld
  5. McDarby -- NJ -- 1,570,000 verdict in Apr. 2006 -- appealed, 3,500,000 award upheld
  6. Garza -- TX -- 32, 500,000 verdict on 4//21/2006 -- remitted to 8,700,000
  7. Doherty -- NJ -- defense verdict on 7/13/2006 
  8. Grossberg -- CA -- defense verdict on 8/2/2006
  9. Barnett -- EDLA -- 51,000,000 verdict on 8/17/2006 -- new trial ordered -- settled?
  10. Smith -- EDLA -- defense verdict on 9/17/2006
  11. Mason -- EDLA -- defense verdict on 11/15/2006
  12. Dedrick -- EDLA -- defense verdict on 12/13/2006
  13. Albright -- AL -- defense verdict on 12/15/2006
  14. Appell -- CA -- hung jury on 1/18/2007
  15. Arrigale -- CA -- defense verdict on 1/18/2007
  16. Kozic -- FL -- defense verdict on 10/8/2007
  17. Hermans -- NJ -- defense verdict on 4/3/2007
  18. Schwaller -- IL -- defense verdict on 3/27/2007

For readers wanting to cite to these, I have collected them in my article titled The Social Value of Jurisdictional Redundancy, 82 Tul. L. Rev. 2369 (2008) at footnotes 106 and 107. It is available on SSRN.

Thanks to George Conk (whose blog is called Otherwise) and Ben Zipursky, both of Fordham Law, for supplementing my research.


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The original amount awarded by the jury in the Ernst trial was $253 million.

Also, as a point of interest, Please keep in mind that there are a number of Vioxx plaintiffs remaining who, though eligible to participate in the settlement, chose instead to go to trial. Despite the language in the settlement which "requires" participating plaintiff attorneys to drop all of their non-participating clients, some of the remaining plaintiffs have found counsel willing to challenge that dictum and represent them. These cases are still in the possession of the federal court and need to be addressed at some point.

I am one such plaintiff, and have become frustrated at the lack of movement of my case. I am aware that my frustration may be premature, but have no other plaintiff with whom to compare my experience. My attorney tells me the only option we have at this time is patience. Though I am fully confident in my attorney, I'm not sure I feel the same way about the way the cases are being handled by the court. Also, I can certainly understand that my attorney could end up at a great disadvantage by challenging the fundamental manner in which these cases are being handled.

From what I understand, Judge Fallon plans to personally try each case, in their home-state settings, rather than to simply transfer the cases back to their respective state courts. I can understand that there are clear advantages to that decision, since Judge Fallon has been involved in the Vioxx settlement since the beginning and is knowledgeable about the vast amount of information generated throughout the process. But, despite Judge Fallon's familiarity with the Vioxx litigation, I wonder whether he will be able to oversee the new cases in a fully neutral manner. Since he was also the administrator of the settlement agreement, I'm afraid that he may already have a fixed idea (subconscious, though it may be) of what the "correct" outcome should be.

Perhaps I'm not giving the court system a fair shake, but the reason I chose to opt out of the settlement in the first place was because from the beginning I've believed it to be a severely flawed agreement, most beneficial to Merck and the plaintiff attorneys who chose to participate. The plaintiffs themselves, at least the ones with substantial, legitimate cases, were certainly not the ones to triumph from the process.

You may remember that during the years Vioxx was being sold, Merck received an 11 billion dollar profit from those sales. The settlement has, from it's conception, been presented as a monumental and historic pay-out and a major gesture of sacrifice for Merck. Since the amount paid in the settlement was 4.8 billion dollars, even with all of the additional legal fees that Merck has spent since Vioxx was taken off the shelves, they have still come out ahead. Way ahead. Enormously ahead.

I wish I could present this information without having to do so anonymously, but I too could find myself behind the eight ball when my case is finally brought to trial. I only hope that it happens within my lifetime.

Posted by: anonymous | Mar 17, 2010 3:51:21 PM

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