Can Merck’s Lawyers Defend Against Each of the Thousands of Vioxx Cases?

Alex Berenson, of the New York Times ("NYT"), reported that in an August 25, 2005 interview Merck’s general counsel Kenneth C. Frazier said Merck would consider settling some Vioxx lawsuits where the patient took Vioxx for more than 18 months and had few other pre-exiting risk factors for heart disease.  Before that August 2005 interview Mr. Frazier had maintained that Merck’s lawyers would defend every Vioxx lawsuit filed against Merck. 

To date, there have been thousands of personal injury and wrongful death lawsuits filed across the nation concerning Vioxx.  For the most part, these Vioxx lawsuits allege that Merck did not disclose to the FDA, doctors, and patients the increased risk of heart attack and stroke associated with Vioxx use.

At the time of his August 2005 interview Mr. Frazier said, when answering a question about whether Merck would settle some Vioxx cases, "[w]e would look at the facts of the case and make reasonable decisions."  Mr. Frazier added to that comment, "[t]he point is that each one of these cases raises individual sets of facts."  Ultimately, Mr. Frazier emphasized that those Vioxx cases where a settlement might be possible would a represent only a small fraction of those thousands of Vioxx lawsuits filed against Merck. Putting it another way, Mr. Frazier said that Merck does not plan to offer any overall settlement of all the Vioxx suits, stating "[w]e have no interest into entering into any kind of broad global settlement."

Mr. Frazier’s indication in late August 2005 that Merck might consider settling some Vioxx cases came less than a week after a jury in Angleton, Brazoria County, Texas found that Merck was liable for the death of Robert C. Ernst, a 59-year-old man who died in 2001 after taking Vioxx for eight months. The Texas Vioxx jury awarded $253 million to Carol Ernst, Mr. Ernst’s widow, including $229 million in punitive damages.

(Posted by: Tom Lamb)