Saturday, May 31, 2008

WSJ on Vioxx Appellate Rulings

Editorial in the Wall Street Journal -- Vindicating Vioxx.  Here's an excerpt:

Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller. In Texas, a court overturned a $26 million 2005 jury verdict against the drug company, while New Jersey's court whittled down an earlier verdict to exonerate Merck from a finding of consumer fraud and eliminate punitive damages.

The rulings are evidence that some sanity still exists in the tort system – at least at the appellate level. In Texas, the court's Chief Justice Adele Hedges said there was "no evidence" that the patient had suffered a cardiovascular event as the result of a blood clot or that Vioxx was in any way related to the death. Those are strong words for a case that the trial bar had celebrated as the start of a huge payday.

At the beginning of the Vioxx hysteria, some analysts predicted Merck's liability could spiral as high as $30 billion, threatening the company itself. Last year, Merck settled most of the cases for $4.85 billion. But since Vioxx was taken off the market in 2004, only three of the 20 suits that have gone to juries have ended favorably for plaintiffs. There were other reality checks along the way: Vioxx plaintiffs were denied class-action status in a federal court in 2006, and by the New Jersey Supreme Court last year.


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IS the timing good to re-negotiate - YES

MERCK STOCK – 2 year low…
Has anyone noticed that Merck is at the lowest stock value in 2 years? While the market is down, and very volatile, in general – it has to be much more than that. With several "positive" events for Merck such as "the settlement theoretically moving along fine", "the reversals of two cases recently", "the coming Supreme Court pre-emption decision"…"last month a very good earnings report"…"the state settlements"…what gives?

In GENERAL, the market is fairly astute and various "events" are factored in. Possibly the market is factoring in some things that are not so positive as what may seem to one's first view and media hype and distortion.

For example – MAYBE:

1- more negativity on the ":settlement" than is known…

2- maybe the two reversals are not really that big of a deal (RON is also going to speak on those two reversals by the way)…

3- maybe the Supreme Court expectations by the market are not what is feared by normal, rational people – possibly the market knows the FDA has been so inept that there will not be a positive ruling (at least not in enough totality…

4- the "state settlements" cumulatively are rubbing the wrong way against Merck's public relations. There ARE going to be plenty of trials in the future, Vioxx or not, and that same public ends up being jurors (another reason why the PRIVATE SETTLEMENTS in WILD WEST form, must not be allowed – they are NOT rational TORT REFORM)…

5- some of the rulings (like the FDA has to approve some Merck marketing efforts (Merck must be humiliated by that! – if not they should be…)…

Of course, the truckload and production line of problem oriented (alleged) shoddy products – with so many of the same allegations of (alleged) deceit by concealment, neglect, fraudulent marketing, etc. may portend more long term litigation to come and a Merck public relations nightmare.

Take it a step further – what better time for the "settlement" to have valuations and terms renegotiated – tuned – etc. so that at least a "reasonable" total proposal is provided to the litigants – which the current is not. Continued pressure on Merck, by whoever and wherever, is the only thing that can make that happen, and VPEG is one entity, and a potent, if still somewhat potential one. Negotiations need to be from STRENGTH, not weakness. That STRENGTH would surely exist today…especially since cases can STILL be remanded with the (seems to be) guarded TRIAL PACKAGE.


I am not POSTING it, but I have started some very early views of Merck's financials (not auditing, more of an analysis on cash flow, earnings, cash on hand, ability to meet obligations), etc. – and that continues to look just fine….I am going to do a bit more here and there on that to get better educated on it – as no doubt Merck, if it calls for it, will cry out how it will go out of business if blah, blah, blah…but that would be a ruse and negotiating ploy, and having numbers to back repudiate Merck's cries for help needs to be done.

THIS IS WHAT THE PSC should have been doing among other things… IF they had proper resources and a proper team when negotiating with Merck, who just outgunned the PSC. I had maintained – for 1.5 years, that the PSC needs to add financial acumen to its team (and later realized also statistical skills) so that it would also have business expertise – not just verbalize, as it negotiated with Merck (oh, and they SHOULD have had a few professional business negotiators). Those concepts of ensuring both MERCK and the Legal teams are properly outfitted with resources and skills, are the concept of a "level playing field" – which the judicial system can, and should, have an active role in – and ensuring it stays level, has appropriate check points, and that litigant rights going into the negotiations are not lost or diluted along the way…

Are YOU a Vioxx victim and Plaintiff?
Are you also one of the disgusted, confused, and worse...litigants who feel that you have been boxed in to the MERCK "settlement" - and there are many ways.... Are you really hoping to find some compassionate individuals to dialogue with, an especially those in a similar or exact situation. then read on....

Vioxx Settlement - a group to relate to...heart - mi - stroke - bone - spine
There is a VIOXX EDUCATION PLAINTIFF EDUCATION GROUP (VPEG) for Vioxx Plaintiffs (now 340 and growing people). Regardless of the “settlement” official position - "things are not as they always appear...", the group REMAINS very, very relative and is gaining increasing “name brand recognition”. VPEG concerns, etc., need to be dealt with, and VPEG is becoming one of the lynchpins in converting a very unfair private settlement to what it should be…

VIOXX victims - we know you shall gain no comfort with the arrogant anti civil right violation HAWKS, also apparently MANY of your attorneys, and certainly not Merck… but there is a group of individuals in a similar situation and KNOW what you are going through. In some ways they are on the leading edge of knowing what the heck is going on and how Vioxx is being used by the MASS TORT LITIGATION REFORM hawsks who wish to pound the MASS TORT system to the ground, without a care in he world of legal fairness or your legal rights.
Whether - whether an "opt-in" who was also "boxed-in" -or- and "opt-out" who Merck is trying to "box-out"; if you are a vIOXX Plaintiff and wish to become part of a dialogue of nearly 350 individuals and growing, WHO CERTAINLY HAVE NOT GIVEN UP and are a bunch of decent, compassionate, human beings - all damaged by (allegedly…) Merck, in the VIOXX debacle...if you are a Plainitiff feel free to submit a request to join the VIOXX PLAINTIFF EDUCATION GROUP (VPEG) - at:

Dennis Harrison

Posted by: Dennis Harrison | Jun 19, 2008 10:12:58 AM

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