By the way, do parties like merck have rights to file lawsuits against the trouble makers who made false claims in this vioxx scandal? If so, then they shall do it instead of this settlement since they may fully recover all of the loss they suffered in this ordeal through proper legal procedures.

God bless America.

Scott, I don’t say “juries don’t get it right.” Juries do get it right a majority of the time—and they even got it right a majority of the time in the Vioxx cases, especially when the plaintiffs weren’t able to manipulate the voir dire. But most of the plaintiff wins are going to be reversed because of legal errors committed by the judges. And I note that Judge Fallon noted that the jury didn’t get it right in the Barnett case—and I fail to understand why a jury that came to an irrational result on damages should be presumed to come to a rational result on liability.

Your assertion that juries don’t get it right is dead wrong. In study after study jury verdicts have been shown to fit the facts of the case as well as bench trials with experienced judges. You weren’t in the court room in New Orleans, the jury was. Frankly I trust them more than a man with an ax to grind.

Great work as always! This whole thing was another multi-billion dollar shakedown by the trial lawyers, no two ways about it. You’ve done a fantastic job documenting the evolution of both the legal and medical issues in this distasteful saga.

Cheers,

Dr. Rob Oliver
http://plasticsurgery101.blogspot.com/

2. You answer your own question in the next breath: bulk settlement is appropriate because of the risk $10M settlements will be overturned on appeal. Again, a former defense attorney would know very well that meritorious cases are often overturned on procedural grounds.

3. It is absured to compare the side-effets of Advil to Vioxx.

4. So you would have no problem with Merck being able to cut corners to rush a product to the market, selling a drug they know hurts people, and throw larger Christmas parties with profits they made by evading responsibility?

5. How can you, on the one hand, concede the settlement was fair for plaintiffs, their attorneys, and Merck, yet insist that, on the other hand, this is an example of a “meritless” lawsuit?

The Vioxx label provided FDA-approved warnings reflecting the scientifically available information, which is all the law requires, and all the law can reasonably require. One can’t expect a manufacturer to have perfect foresight.

Advil (ibuprofen), incidentally, also has side-effects, including cardiovascular risk.

To your last point: All drugs may have side effects but we trust that we’ve been given the information necessary to know whether the risk of side effects are worth whatever benefit we might gain. Folks who had risks shouldn’t have been anywhere near Vioxx because they could just as easily taken Advil.

2) David Graham’s only study of the data (published in Lancet) failed to find statistical significance for risk for low-dose Vioxx. His more sensational figures are cherry-picked from other studies, and contradict the figures Graham himself used when writing memos for the FDA. This is documented in my working paper and forthcoming volume on the Vioxx litigation.

3) Whether Merck defrauded the FDA is a legal question under Buckman, rather than a subject of opinion to be debated between me and Mr. Graham or any of the commenters. As a matter of law, they did not, because the FDA says that Merck did not.

4) DAV demonstrates my point: the APPROVe data wasn’t available until 2004. It makes no sense to ascribe knowledge to Merck in 2000 that did not exist until 2004. And Merck withdrew Vioxx before APPROVe was completed.

5) Interesting that DAV mentions the ability of the jury to understand evidence: in trial after trial, the plaintiffs tried to get the jurors with the least amount of education. In trial after trial, the more educated a juror was, the more likely they were to find for Merck.

6) Again, the revealed preferences of the plaintiffs demonstrates why these cases are settling. If there were legal and factual merit to the cases they would be worth tens of billions. It’s because the cases don’t have legal and factual merit that the plaintiffs were (a) willing to settle for only $4.8 billion and (b) agree to almost-unheard of conditions of third-party screening to ensure that mass tort fraud did not occur in the settlement instead of a much less complicated inventory settlement where the trial lawyer divvies up the money himself. Do you think Lanier is so stupid to give up billions of dollars if punitive damages were a realistic possibility?

7) Henry Smith writes: “The Supreme Court is very unlikely to even hear, let alone find for pre-emption in the case you refer to.” I’d be fascinated why he thinks that: the Supreme Court is hearing two preemption cases just this term, and is likely to decide to hear a third, Levine v. Wyeth. Again, the Buckman preemption decision was unanimous. This isn’t controversial stuff when judges follow the law.

8) “It’s just bad for the rest of us” means everyone, not just investors in Merck and other legitimate businesses. For example, American pregnant women suffering from morning sickness cannot buy the safest, most effective drug to prevent such problems, because trial lawyers litigated Bendectin out of the country, even as it’s being used safely across the rest of the world. As a result, hospitalizations for dehydrated pregnant women have doubled. Many of us will be using the miracle drugs of tomorrow–and there will be fewer such drugs, because of the billions wasted on illegitimate product liability lawsuits and settlements. If a loved one dies because the drug that would have saved their life was never invented, however, you won’t be able to sue the trial bar.

9) Al Pennington, Vioxx is a drug, so I don’t know how you can say you’re both a Vioxx plaintiff and never took drugs. The deal is a good deal, because under the law, you are entitled to zero: Merck isn’t liable for your heart attack. The fact that the calculator suggests you’re entitled to only $109,000 suggests that you had several other risk factors for heart disease that are far more likely to be the reason for your cardiac problems.

10) I hold my opinion even though it has happened to me: I took Vioxx because a doctor misdiagnosed a torn rotator cuff as a strain. I’ve suffered injuries and side effects from antibiotics and other prescription medications. Drugs have side effects. We can either all become Christian Scientists or accept that fact. I’m sorry for your health problems, but you’d be much better off if you stopped blaming Merck for them when it wasn’t Merck’s fault, and you could recognize the $27,000 as a windfall you weren’t supposed to get in the first place.

It’s not clear it ever became less ambiguous. Looking at the Martin report Appendix Q, “APPROVe Trial Cardiovascular Data …,” p.49 there’s a graphic entitled “Kaplan-Meier Curves of Confirmed ATPC Cardiovascular..”

If that was the less ambiguous data let me assure you that anyone familiar with this type of curve should immediately notice the anomalous happenstance. The operative word is cumulative. Before month 540, both Vioxx and the placebo groups have the same steady rate. After month 540, the placebo group occurrences mysteriously dwindle to almost zero for another 540 months. This is indicated by the cumulative following month 540 barely changing. IOW: the placebo group occurrences effectively STOPPED while the Vioxx group continued the same as during the first 540 months. Outside of statistical fluke, the only other explanation is that placebo’s are PREVENTATIVE, which is absurd.

I hope this wasn’t the compelling evidence provided to the jury.

I can understand why Merck would believe the evidence would be perceived as damning so threw in the towel. Many people go glassy-eyed over 2+2. Trying to understand that curve would really be a problem.

A shame, really.