A Stitch in Haste

Many blawgers, myself included, fear that the number of lawsuits against Merck over its painkiller Vioxx will explode after the disgraceful and partially invalid $253 million dollar judgment against the company.

The number we were all using last week was that there were already about 4,000 lawsuits going into the trial.

We were wrong. (WSJ -$)

The tally of product liability and purported class action suits over Merck's withdrawn painkiller Vioxx was calculated at a hearing in U.S. District Court for the Eastern District of Louisiana. According to the figures, Merck faced 4,951 state and federal product liability and purported class action suits involving Vioxx as of Aug. 15, up from approximately 4,295 cases as of July 11.

Lawyers believe last Friday's verdict against Merck — which is expected to be reduced to around $26 million under Texas law — will encourage still more lawsuits against the Whitehouse Station, N.J. drug company. The number of lawsuits filed since the verdict couldn't be determined.

In the week since the Ernst verdict, I have seen several references to 10,000 potential lawsuits. If that was based on a starting figure of 4,000, that might suggest 12,500 total lawsuits based on the upwardly-revised 5,000 figure.

Merck intends to fight every single one. That's laudable, but it's also expensive. Keep that in mind the next time you're not taking a new drug, because it hasn't been discovered yet, because the pharmaceutical industry had to divert funds from research & development to litigation.

UPDATE: Merck is now reportedly considering settling some lawsuits that fit a "narrow profile" --

Merck's general counsel, Kenneth C. Frazier, told The New York Times in Friday's editions that Merck would consider settling suits brought by people who took Vioxx for long periods of time and had few other risk factors for heart disease.

Keep in mind that the decision to settle a lawsuit does not depend exclusively on whether a litigant believes he is right or wrong legally. It is a mathematical lottery based on the probability of winning or losing, which is in turn a function of the litigant's confidence in the legal system and the potential damages involved. Now that Merck's confidence in juries is understandably at or near zero, settling high-risk cases may make perfect sense, regardless of whether Merck thinks it should prevail in all cases.

On the other hand, I can just imagine the next gaggle of jackasses in a Merck trial jury room: "Well, if they settled other cases, then that means they know they're wrong — time for another quarter billion dollar verdict to 'send a message!'"