Vioxx – A Lesson About Law And Lawyers

by William Jorden on June 7, 2011

by William T. Jorden, Esquire

Last month, August 12, 2005, a small town Texas jury returned a sensational verdict for Plaintiff, Carol Ernst, against pharmaceutical giant Merck and Company. Evidence established that Mrs. Ernst’s husband, Robert, age 59, died of Vioxx induced fatal arrhythmia and heart attack. Ernst, a produce manager at a WalMart Store, ran marathons and taught aerobic classes on the side.

The jury awarded 450 million dollars in economic damages for Robert Ernst’s lost pay, 24 million dollars for mental anguish and loss of companionship, and 229 million dollars in punitive damages.

Is there any lesson to be learned from this about the law and lawyers? A $253,450,000.00 verdict within our legal system of justice, is far more meaningful than the announcement of last week’s lottery jackpot winner.

The verdict in the Vioxx Case is a clear example of how our civil justice system works to protect our rights, allowing ordinary Americans to hold even the largest and wealthiest corporations accountable when they put their bottom line before the health and safety of the public.

David Graham, Scientist of the Food and Drug Administration, in testimony before the United States Congress, said that Vioxx contributed to the death of as many as 55,000 people in the United States. Merck knowingly put a dangerous and deadly drug on the market and should be held accountable. Internal Merck documents indicated that the company was aware of the problems with Vioxx as early as 1997. In fact, the company’s top scientist stated in March, 2000 that a clinical trial of Vioxx confirmed that the drug had heart risks. Despite their knowledge of these problems, Merck aggressively marketed the drug, making billions of dollars off the new blockbuster.

Merck trained drug reps to dodge questions from doctors about the safety of the drug, another example of their negligence and lack of concern for the public’s well-being. In a misleading 2001 letter to doctors, the company clearly understated the risks of taking Vioxx. Merck even produced a game called “Dodgeball” to teach pharmaceutical representatives how to avoid answering tough questions about their new blockbuster drug. If Doctors were deterred by this tactic, internal documents show that Merck worked to discredit these doctors.

It’s obvious that the CEO of Merck was paying a great deal of attention to promoting the sales of Vioxx because it was critical to their bottom line. The jury in the trial sent back a clear message to Merck that they should have been paying equal or more attention to insuring that Vioxx was safe for patients. As the jurors themselves have noted, the 229 million dollars in punitive damages that they awarded, was not a random figure pulled out thin air. It was the amount that Merck officials estimated the company would save by delaying changes to the drugs warning label.

It is expected that the damage award is likely to be drastically cut to no more than 26.1 million, because Texas law caps the punitive damages that made up the bulk of the total.

This case gives us a glimpse at the manner in which our courts and juries create a coliseum affect, where the struggles between the interests of large corporations are met with society’s challenges and demands for justice and accountability.

The lawyer is the modern-day gladiator who fights within this coliseum of justice. As in most product liability cases, the lawyer representing the victim and his family, is only paid a fee if the jury finds him right, and often the attorney must use his own personal financial resources in combating the staggering wealth of the large corporation. Corporate or insurance company attorneys are paid by the hour, win or lose, and their clients front all expenses.

What we learn about lawyers is as John M. Cleland, President Judge of McKean County, Pennsylvania, wrote, “We are a society of law. (Lawyers and Judges). As a profession schooled in the law, it is our unique responsibility to assure that the law is used to protect the social welfare and promote the legitimate ends of government.”

Clearly implicit in the outcome of this Vioxx Case, the pharmaceutical companies are not policing themselves. Likewise, our government is not holding the pharmaceutical companies accountable. Consequently, the last resort for victims or the family members of those who have died or are injured, is with the personal injury lawyer and in our courts.

The law exists to protect society’s interest. The law is a vehicle where ordinary citizens can be protected and receive redress from abuse of corporate power. The lawyer, worthy to continue the great traditions of his profession, works within this system to protect the social welfare and promote justice. These are the lessons to be learned from the Ernst v. Merck and Company verdict.

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