The New York Times today published an article by Alex Berenson, “Plaintiffs Find Payday Elusive in Vioxx Cases”. The article gives a good overview of Merck’s legal strategy of refusing to settle any of the cases alleging that Vioxx caused plaintiffs’ heart attacks. Vioxx was Merck’s arthritis drug that was withdrawn from the market in 2004 due to increased risk of heart attacks.

Tens of thousands of lawsuits were filed by patients and their heirs (when the patients had died of heart attacks), accusing Vioxx of having caused their heart attacks and Merck of having hidden the risks of Vioxx despite allegedly knowing about them for several years before the drug was finally withdrawn. Faced with potential legal liability in the billions, Merck decided to refuse to settle any cases, on the notion that early settlements would only encourage more lawsuits to be filed, whereas if Merck won early cases, it would discourage new cases and convince lawyers to withdraw cases that did not seem promising.

Merck’s win-lose record thus far is mixed. It won several cases at trial, but lost several more, with juries awarding millions of dollars to those plaintiffs. Predictably, Merck has appealed each and every one of those judgments, and, as the Times article describes, the net result is that not one Vioxx plaintiff has received a penny to date.

This article underscores the imbalance of power that faces consumers and patients in the Courts when they face large corporations with exponentially greater resources to fight a legal battle. Even consumers with strong and well-documented cases can in the end be deprived of justice by virtue of having to wait years and years as appeals are exhausted:

So far, fewer than 20 Vioxx suits have reached juries, an average of 9 in each of the last two years. At this rate, the backlog of Vioxx cases will take years to work through and many plaintiffs may die before they get their day in court.

The article quotes one plaintiffs’ lawyer:

“Merck’s goal is to manipulate the legal system to deprive justice to tens of thousands of people whose cases can never be heard,” said Mr. Lanier, the lawyer who represented Mrs. Ernst. “Justice delayed is justice denied.”

Merck has also resisted the consolidation of many of the individual lawsuits into a single class action. Such a process is not uncommon in prescription drug cases, particularly when there is a core set of facts that is common to all the plaintiffs. By combining the claims of numerous plaintiffs, class actions help prevent large corporate defendants from employing the types of strategies that Merck has used in Vioxx. The pressure to consider settlement, for example, is much greater in a case with thousands of plaintiffs and combined potential liability of billions, because the stakes of a loss at trial are exponentially higher.

In addition to the more than 45,000 personal injury and products liability lawsuits, there are also individual and class action lawsuits on behalf of consumers, health plans, union benefits funds, and others, not based on heart attacks, but based on the fact that Merck allegedly deceived patients, physicians, and payors about the risks of Vioxx, causing them not only to pay for a drug that might not have otherwise paid for, but to pay a premium price for it. Members of Prescription Access Litigation are involved in several of these class actions, which you can learn more about here.