Vioxx litigation, where it stands now, what lies ahead.

The last few weeks have been particularly interesting, if not well reported, as it relates to the Vioxx litigation that is ongoing in state court in NJ,  in Federal Court in Louisiana, and again in state court regarding the progress of a class action against Merck. I'll be doing a series of interviews of some of the major players in Mass Torts over the next 10 days to get you more depth on this, but for now lets just frame where it has been to date, what just recently occurred, and what lies ahead in this incredibly important litigation.

Over the last year there have been a series of trials in NJ, where the majority are consolidated under Judge Carol Higbee, in Louisiana under Judge Fallon, and then a couple individual trials in Texas, the first of which brought in the stunning verdict against Merck of $248 million, which was later reduced to $25 million. The first NJ Trial ended in a victory for Merck, as did the first Federal Trial in Judge Fallon's court. The most recent verdicts, a solid win and a puzzling loss seem to make it more clear then ever that the longer use cases are going to be the real problem for Merck.

What was largely unreported was that while the recent trials were ongoing, a NJ appeals court allowed a class action suit by third party payors, pension health funds, HMO's, etc, to proceed against Merck for their claims against the company for prescribing and providing Vioxx to their members and customers. This could ultimately be a problematic as the personal injury suits that are working their way through the MDL and NJ court rooms.  

If you are looking for a really good summary of events, details and what is happening on Vioxx litigation to date, I strongly recommend legal blogger Attorney Mark Zamora, who covers the Vioxx cases in far greater detail then I ever could. His blog is entitled A Georgia Lawyer and I think you'll find it invaluable in understanding this case.

The other over looked aspect of these cases is the split among trial lawyers into those who have stayed with the MDL, and those who have walked away from it and are developing their own approach. This weeks cases, McDarby and Cona, were tried by attorneys who left the MDL, in the case of Cona, Texas trial lawyer Mark Lanier represented him, and McDarby was represented by Weitz and Luxemborg partner Attorney Robert Gordon. While Lanier got all the headlines coming in, rightfully so on the weight of his verdict in the first Vioxx case, Attorney Gordon tried what was clearly a very effective case and obtained a $4.5 million verdict. There is a very good profile of Attorney Gordon in the WSJ online. You can find it here.

Both lawyers firms opted out of the MDL, and the mixed verdict shows that these cases are both winnable, and "losable", and I expect the alliance of non-MDL attorneys to go back, parse the information and look at their jury interviews, etc to see what worked, what didn't and refine their approach to the next set of cases.  

So what next? Merck's stock took a hit, which it always does after a verdict, but I expect that is temporary once the headlines are digested and the fear of immediate ruin is gone. Merck is in this for the long haul and they have done a good job so far of getting cases they wanted tried early on, namely the short duration, high risk patient cases, in which evidence is cloudy or uncertain that Vioxx would be a direct cause of cardiac event. By winning those short duration cases there is a line starting to form between long duration and short duration that should ultimately assist in the global settlement of these cases that must occur. Merck can talk all it wants about taking each case to trial, but the cost of that strategy in both direct litigation expenses, drain on management talent and time, and lower stock valuations isn't something Merck can reasonably continue for very long. At some point there will be classes of claimants formed based on some set criteria, such as length of use, proof of documentation of use, absence or existence of certain risk factors, etc, and then a settlement can be reached.

The risk of trial for both sides, as the Cona and McDarby verdicts indicate, is still substantial, with costs both human and financial that neither side will wish to carry for any great length of time. So, some clarity, some clouds, on to the next case, but no answers yet for the tens of thousands of people who took Vioxx with zero information of the risk they were possibly subjecting themselves too.  




Posted on April 8, 2006 .