Merck was quick to splash its victory (in what had become known as Vioxx II) across every media outlet possible within minutes of the jury verdict in its favor.
In the hard-fought and often acrimonious seven-week trial, Merck had quite a bit to lose had it not prevailed.
Clearly, a loss would have put the pharmaceutical giant in a terribly difficult position with respect to its exposure in the remaining Vioxx cases which now number in the vicinity of 7,000 (and growing rapidly worldwide). Losing always carries with it a stigma separate and apart from the merits of any conflict. Thus, Merck had to win. A record of 1-1 is a whole lot different than 0-2.
In terms of what the victory means litigation-wise, however, Merck’s defense team is experienced enough to know it means very little since it is somewhat like trying to stop a tidal wave with an eyedropper.
Merck would have to go on the greatest winning steak in history (7,000-0) to stave off a financial catastrophe since each negative verdict has the potential of being in the millions of dollars. Even scattered losses for Merck can add up to a financial disaster.
Is such a possibility realistic? Not even Merck’s attorneys could believe that. Shortly after the verdict we spoke with several seasoned trial and appellate attorneys who were all of the same opinion; Merck’s victory means little, if anything, to the overall litigation situation the company faces. This is especially true since Merck has repeatedly stated that it intends to fight each case individually.
The reason for this is that each case Merck wins only serves as a victory on the particular facts of that case since every plaintiff’s claim is factually different and the law allows each injured party to have a chance to prove his or her case.
Each case that Merck loses, however, has a cumulatively negative effect since it has gotten another chance to prove its lack of culpability and has failed. As one attorney put it: “Each plaintiff has only one chance to prove he’s right in order to win, but Merck has to show it’s right another 7,000 times in order to walk away without being liable. The likelihood of that is zero.”
In the New Jersey case, there were a number of factors which favored Merck including: the plaintiff only took Vioxx for two months before his heart attack; he survived his injuries and actually appeared to be in surprisingly good health at trial despite the injuries he claimed to have suffered; plaintiff had a number of serious (non-Vioxx) risk factors that could have caused his heart attack; the case was litigated in Merck’s home state of New Jersey; and Merck’s attorney made every effort to make it appear as if the trial judge was being unfair to the drugmaker with her rulings. The jury also was not enthralled by plaintiff’s trial attorney.
It is highly unlikely that there will be a confluence of all of these factors in any of the remaining cases. Many of the remaining cases involve factors which will make Merck’s job much harder.
These cases involve deaths, long-term use of Vioxx, plaintiffs without additional risk factors for heart attack, unfriendly jurisdictions (in terms of not being Merck’s home field); different judges (with far different dispositions and tolerance levels); and different plaintiffs’ trial attorneys (a factor which cannot be underestimated).
Thus, while Merck’s defense team has every right to relish its victory and bask in its glow for a couple of days, like any other army facing potential annihilation, it knows it will have to gear up for (and win) many more battles before it can truly claim victory.
Merck would therefore be well-served to pay heed to the warning from the biblical books of Ecclesiastes and Isaiah: “Eat, drink, and be merry, for tomorrow we die.”
