When the history of the Mass Tort legal "business" is written some
day by some university professor with an interest in strategic and
organizational issues the chapter on The Vioxx Settlement should be
subtitled, The Day the Music died. Perhaps no other mass tort was
started with such high hopes by the trial lawyers involved and which at
the end of the day ended up being a massive repudiation of the
strategic thinking and legal strategy involved in prosecuting this
enormously complex mass tort.
From the start it looked as
if this was going to be a home run of epic proportions for trial
lawyers and an opportunity for the seriously ill and injured plaintiffs
to obtain some measure of economic and financial justice for what they
went through. You had clear and horrific injuries as a result of
strokes and heart attacks, you had hidden medical data and fudged
studies that strongly suggested that Merck knew early on that their
drug was a silent killer for a significant proportion of it's users and
you had the FDA yanking the product off the shelf as the evidence
became clear. Surely all that remained was to round up the injured
victims, put them into friendly legal jurisdictions, win a few early
trials and Merck would roll over and write that $30 billion check.
I
was there at the start, attending ATLA and MTMP meetings and the
excitement among the trial lawyers was only matched by the excitement
of the legal marketing and advertising firms convincing the trial
lawyers to spend massive amounts of money advertising to round up the
injured Vioxx clients. Oh and did they ever advertise and spend money,
all in the hope of an early, substantial settlement that would pay off
all that legal financing and advertising money, but when Merck did the
unthinkable and decided to spend close to $1 billion just to defend the
first early trials and contest every claim and case did their strategy
become clear. Bleed the trial lawyers white in a war of attrition that
Merck and it's brilliant general counsel Ken Frazier knew would end in
much the way the Civil War ended, with the rebels exhausted, out of
resources and desperate to simply strike a truce on the best terms
possible.
So what we got was the still significant, but
financially modest settlement, in which $4.85 billion is to be
allocated among the more then 50,000 injured and ill plaintiffs. Why do
I bring all this up? Largely because I started receiving the first of
my phone calls from Vioxx claimants this week as they start planning
what to do with the still to be determined money they will net in the
settlement. Many fear the loss of their governmental benefits if they
accept even the modest amounts they might receive and others are
wondering what they can do with the funds to some how rebuild their
lives that have been destroyed by their use of Vioxx.
I'm
not in any way criticizing the vast majority of lawyers who did their
best to find injured clients and put them into the litigation process
known as the Vioxx settlement. They are each working in the flawed
system that has evolved and they are pretty much swept along by the
tide and process, with little control over what goes on or how the case
is resolved. What I am critical of is a "justice" system where we have
legal war fare between a company fighting for it's very economic
survival due to a drug they made and sold going bad, and trial lawyers
who are vastly under funded and scattered across the country who are
attempting to obtain some measure of economic and legal justice for
horribly sick and injured people. The wasted time, money, resources and
lives now becomes clear, as I talk one on one with the people who are
struggling to live with some dignity after their lives were destroyed
by this drug.
The great Gerry Spence once said, "awarding
money is a poor measure of justice, but it is only measure we have in
the civil justice system". As I talk with people whose needs so far
outstrip any potential recovery they will receive, it only reinforces
what I believe, and that is that our system for handling mass torts is
badly damaged and that the only people who receive economic justice are
the lawyers who defend these matters and bill at $1000 per hour, and
the very few lawyers at the top of the mass tort food chain who control
the litigation.
