Starting Friday afternoon when news of the $253 million Merck Vioxx verdict hit the wires, the press feeding frenzy started. The intrepid reporters at law.com were on it, not once but twice. Other great coverage is available from Tom Kirkendall and Larry Ribstein.
Merck trotted out GC Kenneth Frazier in a press release, where he gamely said:
“We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict,” […] “Our appeal is about fundamental rights to a fair trial.”
More on the actors in this drama here. Plaintiff’s attorney Mark Lanier is clearly very good; if you have access to the WSJ site, check out this video of him in action (link courtesy of the Conglomerate). It shows how he finessed the issue of causation, which was supposed to make this case stronger for Merck than others in the pipeline.
The New York Times captured the courtroom dynamic well:
The case in Angelton pitted a team led by Mr. Lanier, a part-time Baptist preacher considered one of the top trial lawyers in the United States, against a small army of lawyers for Merck that included lawyers from two large corporate law firms, Williams & Connolly and Fulbright & Jaworski.
There will be much analysis, and perhaps even a bit of fault-finding and finger-pointing. Most done by people who have never had to take a bundle of facts given to them and put on a defense in a wrongful death claim. As a lawyer, there is a big difference in who is sitting next to you–a grieving widow with her neighbors close by in the jury box, or the nameless representative of the Big Pharma that (allegedly) caused the death of her husband.
While dissecting the trial is interesting, this case may have been lost long before it started. Once Merck withdrew Vioxx from the market, in a move they probably thought would be strategically sound (and perhaps even publicly praised), every word written or spoken about Vioxx was put under a different microscope than Merck was familiar with. People who do drug research are focused on finding cures and enhancing treatments, not writing exhibits for their depositions.
While Merck will appeal and probably has a good argument under Texas law that the punitive damages were excessive, other Vioxx plaintiffs’ attorneys will read Mr. Lanier’s transcript like a textbook.
And you can bet that the CEOs and GCs of most pharmaceutical companies are having a dialogue this morning on how to balance the upside of a good drug with the risks of one that goes sideways on them. Do you give attorneys in your legal department white coats, place them in the lab, and have them look over the shoulders of researchers?
Lost in all this is the fact that Vioxx worked, and worked well. I know people who are desperate for it to go back on the market, as it was the only medication that made their pain bearable and a mobile life livable. They would gladly take the (slight) increased risk of stroke or heart attack, for the chance to be able to get out of bed in the morning.
It may have even helped parishioners in a certain Texas church dance in the aisles on long-forgotten Sunday mornings.