Vioxx Settlement Reversals and Merck’s Courtroom “Victories”
While Merck & Co., Inc. has paid out billions in settlements to former Vioxx users, not all Vioxx lawsuits against the drug manufacturer have been successful. The caps on lawsuits vary by state, and the scientific evidence is considered specifically for each case. This means that some cases are stronger in court than others.
One of the most well-publicized Vioxx suits took place in Texas. The court awarded the widow of a Vioxx patient $253 million in damages after the death of her husband. The award was later reduced to the maximum amount allowed in the state of Texas, which was $26 million. In April of 2008, the verdict was overturned when the appellate court found that the prosecution had not established enough supportive evidence that the deceased man’s heart attack was a result of his Vioxx use.
In New Jersey, an appellate court overturned a $9 million award in punitive damages to a Vioxx patient who survived a heart attack. However, the court upheld the $4.5 million award for compensatory damages. The portion of the lawsuit that was overturned concerned accusations of consumer fraud by Merck. It was decided that, because the FDA had affirmed the safety of Vioxx, Merck essentially could not be considered guilty of selling an unsafe product.
Critics of the New Jersey decision say it brings to light a problem with the practice of “federal preemption,” which in effect kept the jury from considering evidence heard at trial because the FDA’s approval of Vioxx was considered to take precedence.
These two verdict reversals eliminated the two largest payouts by Merck for individual Vioxx lawsuits. A press release on the web site for Merck & Co., Inc. states that Merck’s record in court has given the company a positive outlook. The Merck site adds that of the eighteen cases that went to trial, only three resulted in settlements that were not overturned on appeal.
However, in May of 2008, on the heels of the reversals of the Texas and New Jersey verdicts, Merck agreed to pay a $58 million settlement in a class-action suit brought by 29 different states. The suit accused Merck of misleading advertising, both to consumers and doctors, that concealed the known cardiovascular risks of Vioxx. This decision also established more rigid legal guidelines concerning drug advertising practices.
In June of 2008, the New Jersey Supreme Court ruled that Vioxx patients who did not experience a cardiovascular event may not seek damages to cover the costs of tests to measure cardiac function. This decision, while possibly eliminating similar lawsuits, was not considered a major blow to Vioxx plaintiffs nor a major victory for Merck.
While it is impossible to predict the outcome of Merck’s legal battles over Vioxx, the billions in profits Merck enjoyed from the sales of the drug continue to hang in the balance. The Wall Street Journal dubbed Merck’s recent aggressive promotion of the drug Gardasil a “help pay for Vioxx” campaign, in recognition of the company’s need to boost income while facing massive litigation. Despite the major verdict reversals in New Jersey and Texas, Merck has paid more than $5 billion in settlements, and that amount continues to grow. In the end, these ongoing legal battles will mean a big chunk of Merck’s Vioxx profits are gone forever.