Vioxx litigation. Long term battle?

Interesting, but brief, comments by a variety of legal commentators in this AP article stating that it will be years before there will be a mass settlement of the Vioxx claims.

Half way in the article an attorney, David Berg, points to a case with similar parallels in the Haliburton asbestos litigation. He correctly points out that it was just as much shareholder and stock market pressure that forced Halliburton's hand, as the science and court room strategy of defending the claims.

What many have forgotten in this era of tighter corporate governance is that if Merck does continue with the "fight them one at a time" strategy, that even if they win a few cases, they will certainly lose just as many, and the uncertainty of the legal battle, coupled with the negative publicity and overshadowing of their other profitable and successful products, will drag this stock down in value for as long as they fight it.

As I've said before, their major mistake was not at least opening the door to settlement talks prior to the Texas verdict, and at least getting a handle on what a global settlement might cost. Once that verdict hit the public awareness, regardless of what happens in appeal, a dollar figure was imprinted on the minds of trial lawyers and victims across the country, and now the cost of the eventual settlements will be substantially higher then before.

On point, read this article on Sarbane's Oxley in today's WSJ and how it is being used to push corporate reform and governance through litigation and the threat there of. The pressure on outside directors is immense and it is only a matter of time before the cost of waging this war creates a degree of pressure to settle that can't be resisted inside the company.

Settling cases requires pragmatic, non-ego driven professionals who know the best settlement is one where both sides feel they paid too much. Right now, Vioxx is in the hands of aggressive trial lawyers, plaintiffs who saw a huge verdict and company driven by a suicidal defense strategy. It will require the firm hand of the stock market to drive the parties to the bargaining table where this case rightly belongs and will eventually end up.

Posted on October 17, 2005 .