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Slate's Jurisprudence: Huge Vioxx Loss for Merck

MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

In a few minutes, a New York band rescued from the dust bin of history.

But first, the giant drug company Merck is facing 4,000 lawsuits. It just lost the first one brought against it when a Texas jury ordered Merck to pay more than $250 million to the widow of a man who died after taking the drug Vioxx. And joining us to discuss the legal situation Merck now faces is Dahlia Lithwick. She's the legal analyst for the online magazine Slate and a regular guest here on DAY TO DAY.

And, Dahlia, thousands of cases against Merck. Why wouldn't something like this be handled as a class-action suit?

DAHLIA LITHWICK (Slate): Well, I think the question is probably `Why not yet?' Don't forget this is the first of 4,100 suits, so this was a little bit of the canary in the coal mine. And for what it's worth, Merck was widely expected to win this case. So class-action suits don't sort of just happen; there have to be the right conditions and the right lawyers and the right incentive. My guess is in a very, very, very short amount of time, there will be class-action suits filed.

For what it's worth, there is one class-action suit sort of under the radar relating to Vioxx. A New Jersey judge in July certified a class and ruled that third-party insurers who had been paying for Vioxx could sue as a class. So that suit is, in fact, going on. And, like I say, I think there will be further class-action suits now.

BRAND: And, Dahlia, quickly remind us what the jury found.

LITHWICK: The jury in the Texas case found last week that Robert Ernst, who was the deceased husband of the plaintiff in this case, Carol Ernst, had, in fact, taken Vioxx and died as a result of heart damage. The jury found not only that Vioxx was responsible for that, but handed down a $253 million verdict. What they were most alarmed about, they said afterwards, wasn't simply the connection between Vioxx and the heart damage; it's that Merck knew for years that there was a possible correlation between their drug and heart damage and they had gone out of their way to hide it.

BRAND: And they delivered a particularly harsh verdict unexpected on the part of Merck. So will this force Merck to change its defense strategy?

LITHWICK: Well, if you look at the sheer numbers, Madeleine, they sure ought to. You know, the estimate is that about 20 million Americans are presumed to have used Vioxx; estimates are now saying that around 100,000 lawsuits could pop up equaling about $12 billion. So I think the number one thing they have to do different is they have to really think about this idea that they've had up till now of arguing these out case by case. I think there's a tremendous pressure on them to think about a settlement.

There's also obviously pressure for them to add to the $675 million that they put aside in a fund that was going to be for all Vioxx-related suits. As you can tell, that one verdict is already going to half wipe out that fund. So I think the big change has to be--as you said, they were expected to win this suit; they didn't. Their strategy was, `Look, plaintiffs cannot prove that the heart damage was caused by Vioxx.' This jury just didn't buy that strategy, so they really need to rethink where they're going with their strategy.

BRAND: Now this case took place in Texas, one of the states that passed torte reform and designed to limit punitive damages. So what happened to that?

LITHWICK: Well, it will be knocked down now as a consequence. For one thing, Merck is appealing, but for another thing, Texas did pass reform that says that punitive damages have to be limited to two times the actual damages in the case. So the $253 million award will doubtless be knocked down--estimates are--to about 10 percent of what it is, so probably $26 million to $30 million is what the actual verdict will be. But a lot of states that are going to see Vioxx suits do not have these kind of caps.

BRAND: And, Dahlia, it's verdicts like this that have spurred torte reform all across the country. So what do we know about Supreme Court nominee John Roberts' stand on torte reform? And if he's confirmed, would it be harder to bring cases like this?

LITHWICK: Well, as with all things John Roberts, he hasn't taken a position publicly on much of anything. There are two things we do know, though. One is that President George Bush, one of the things that he did as governor of Texas was reshape the Texas Supreme Court to be very, very pro-big business. So we know that's an agenda item of his. It's something that he's done in the past. So it would not be a surprise if Roberts had been carefully vetted as a pro-business nominee.

But another thing that's important to note about Roberts is that he did serve on an advisory committee for a group called The National Legal Center for the Public Interest, which benign name stands behind a group that is very, very much a lobby group for torte reform. So it's clear that he's at least been aligned with such a group. Now we don't know much about him from his decisions, we don't know much about him from other sources, but as I say, I think that it's a good bet that that was something that was sufficiently important to Bush and to the lobby groups that care about pro-business interests that it's probably a fairly good bet that Roberts will line up on that side.

BRAND: Opinion and analysis from Dahlia Lithwick. She's the legal analyst for the online magazine Slate and a regular guest here on DAY TO DAY.

Thanks, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: And more coming up on DAY TO DAY from NPR News. Transcript provided by NPR, Copyright NPR.

Madeleine Brand
Madeleine Brand is the host of NPR’s newest and fastest-growing daily show, Day to Day. She conducts interviews with newsmakers (Iraqi politicians, US senators), entertainment figures (Bernardo Bertolluci, Phillip Seymour Hoffman, Ricky Gervais), and the everyday people affected by the news (an autoworker laid off at GM, a mother whose son was killed in Iraq).
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