It sort of slipped by in all the furor over Cindy Sheehan, but last week a jury returned a verdict in the first of 4200 personal injury lawsuits against Merck Pharmaceuticals over their controversial pain drug Vioxx.
In this case a woman whose seemingly healthy, marathon-running, 59-year-old husband died as a result of heart failure brought on by Vioxx has been awarded $253 million dollars. Merck claimed that an unrelated blood clot caused the heart failure, but the jury sided with the plaintiff and found that Vioxx contributed to the death. A key influence on the jury seems to have been an FDA letter to Merck warning them of potential dangers with the drug which was more or less ignored.
The remarkable thing about the trial is the amount of the award, which greatly exceeds even what the plaintiff's attorneys had expected. Of the award the vast majority - $229 million - was punitive damages. This looks very much like a classic case of a jury trying to stick it to the deep pocketed drug company. The $24 million award for real damages seems pretty sound, largely because there are clear guidelines on assigning value for a wrongful death. But punitive damages are almost entirely discretionary, and in this case the jury apparently thought that Merck's malfeasance was so great that it ought to pay the entire GNP of a small country to one plaintiff. Based on this case, with 4200 more to go, if the results of each case are the same, Merck would end up paying just over a trillion dollars in punitive damages.
Of course, these other claims may be combined into a single class action suit. That means 4200 lawyers would each get a big chunk of cash, Merck would pay only a fraction of the potential amount, and the plaintiffs would get almost nothing. I've been involved in a dozen class action lawsuits over the years and have received checks ranging from 39 cents to $14. The Merck plaintiffs will do better than that, but it's the lawyers who will really come out ahead if a class action develops.
To make the situation more interesting, the case is in Texas which recently enacted strict tort reform laws which severely limit punitive damages. In a case like this the punitive portion of the damages would likely be capped at $20 million, reducing the total to $44 million - much better for Merck, especially if they follow through with their announced plan to defend each of the cases individually.
Article comments
1 - Albanesse
Nice post and to the point... tort litigation is a mess and this amount was and is crazy. I know it will be reduced as most are, but that will be a small 3 line story in the news if mentioned at all. The windfall here is also for free press for the lawyers who bring in people for these sort of things. Any pill can have complications.. hell, soap can cause a severe rash. I know this was a death, but I think people are used to people not dying that when they do and there is no sure sickness to associate it with they look for answers. Not that I am protecting Merck... I think most of these pills are nonsense and have become the snakeoils of this lifetime. People should deal that somepeople die... and we never know why. For me closure is that the person died.. not why and who is to blame. But, that is me.
2 - Dave Nalle
The very size of this award will help encourage more people to come forward - mostly with bogus claims inflated by their lawyers - hoping to cash in as well. It's a terrible, destructive dynamic and a big part of the bane of our society - people not taking responsibility for their own choices and the risks they assume.
Dave
3 - Jim
It is unfortunate that the majority of the blog community commenting upon punitive damage awards and the tort system is fundamentally misinformed and uneducated pertaining to the concepts of law underlying, and purpose of, punitive damages. These posts are also remarkably apologistic toward manufacturing greed which gives rise to these verdicts.
Exhibit one is claiming the award of punitive damages is "too much for one person", or, as Dave Nalle writes "giving the gross GNP of a small country to one person." The purpose of punitive damages is to punish EXTREME wrongdoing by imposing an "exemplary damages" award designed to deter such future wrongful conduct. The amount of punitivce damages assessed is based upon the amount necessary to deter the wrongdoer.
4 - Jim
The amount necessary to deter a company the size of Merck is a lot more than what would be necessary to you and I. Further, there is already an imposition of an limitation, specifically a multiplier of the non-punitive damages awarded in the case that is imposed by the courts. For example, if the award is 25 milion, the multiplier applied is usually set at 10X damages, so it would be 250 million. But the award is not for the individual: it is against the wrongdoing corporation. Merck is not an innocent party - the dirt is amazing. Lying to the FDA and the New England Journal of Medicine by omitting evidence that Vioxx was increasing the occurrance of heart attacks 3 to 4 fold and concealing the studies, while runing a programj called "Dodgeball" where it was training its salespersons to dodge and evade questions from doctors regarding increased risk of heart attack while on the drug. the "facts" which are never discussed and disclosed by commentators prevent a true understanding and appreciation of the validity of punitive damages.
5 - Jim
Instead of providing such education, talking heads avoid the facts, complain about runaway jurors and "liberal/activist judges" causing these awards. The fact is the legal standard is extraorinarily high to even plead, let alone put on evidence of punitive damages to a jury. bad conduct is not enough: there must be Malice, an intent to cause the injury or a knowledge that your actions are going to cause the injury and deciding to do it anyway. Jurors are not salivating to award punitive damages either. Not enough trust is placed in the jury system. Usually when a jury is criticized, it is in a high profile case where minds are already made up by the critics, who must therefore defend their pre-established opinions.
In the context of criminal law, Merck's conduct would be the equivalent of murder one or murder two. Why are so many people willing to be so concerned about a company who murders people getting hit for punitive damages, while if this was a criminal case they would be screaming for life or the death penalty?
By the way Dave, the doctors are pretty upset about Merck's big lie - how about advocating for some responsibility for the manufacturers?
6 - Jim
Dave, you also write "these other claims may be combined into a single class action suit. That means 4200 lawyers would each get a big chunk of cash, Merck would pay only a fraction of the potential amount, and the plaintiffs would get almost nothing."
This too is based upon a total lack of knowledge in the law: There cannot be a class action personal injury action: That is because the damages are distinct in each case. There can be a class settlement, which is etirely different. That is where a defendant elects to form a settlement class to resolve claims en masse. These must be approved by a judge, and the lawyers do not get the majority of the money. This is false propaganda promulgated by tort reformists whiose agenda is not concern over the tort system, but rather creating further curtains of protection for corporations. Why?
"Any new drug, even if it's believed to be safe, is a relatively unproven product. A few double blind studies over a short term with a relatively small sample, are not going to turn up the kinds of rare problems you see when a drug is given to 20 million people. So even if a drug has been tested and is believed to be safe, that's not an absolute guarantee, and you assume some risk when you take it." The problem is, this problem was noticed, and hidden from the FDA. This is misleading, and a version of the sort of "Big Lie" that is used to shield corporate wrongdoers all time. Also, this ingnores the type scientific evidence that is required to have these claims pst judicial muster under the law to even get to a jury. Under these "facts", there would be no liability under any product liability law in the nation. Period. Certainly the issue of punitive damages would also never be before a jury.
7 - Jim
By the way, Dave - Sorry for the frequent typos.
8 - Dave Nalle
Jim, I'm not trying to give the pharmaceutical companies a break here. If you actually read the article, my suggestion was that if Merck is that guilty they ought to face criminal prosecution as punishment, not some loopy enormous financial penalty.
As for Merck hiding problems with the drug from the FDA, that information had not come out at the time I wrote the article over a year ago.
Dave