Lawyers cashing in on Vioxx 

A final, sordid chapter in the tort litigation over Vioxx — Merck’s arthritis drug accused of increasing heart attack risk — ended as a judge divvied up $315 million for the plaintiffs’ attorneys who worked on the lawsuit.

This  was in addition to the more than $1.2 billion already paid to such attorneys. When you add in what Merck paid to plaintiffs and for its own attorneys, Vioxx litigation cost the company more than $7 billion.

Yet, Merck almost certainly did not do anything wrong. Even as an unsympathetic corporate defendant, it won the vast majority of cases that went to trial, and another dozen or more that plaintiffs’ attorneys dismissed on the eve of trial rather than risk the publicity of a certain loss.

Even in the handful of cases Merck lost at trial, such as the $253 million verdict in the Ernst case that generated much of the publicity leading to tens of thousands of cases being filed, Merck reversed most of those on appeal because the verdicts were based on junk-science expert testimony that should not have been admitted into evidence.

Take, for example, the case of Leonel Garza, one of the few cases plaintiffs won at trial. Garza, who was said by plaintiffs to have taken Vioxx for three weeks, was a 71-year-old overweight smoker with high cholesterol, decades of heart disease, and a history of a heart attack and a quadruple bypass, yet a jury awarded his survivors
$7 million in “compensatory” damages and punitive damages to boot.

But Garza never had a prescription for Vioxx. His widow testified that Dr. Michael Evans gave her husband an eight-day sample of Vioxx in a brown vial, and that Dr. Juan Posada then gave her husband two more vials filled with 15 pills each and told him to return in 30 days.

But the Garza family never produced these brown vials; Garza’s son testified at trial he threw them away. Posada testified that he never gave Vioxx to Garza. Evans testified he gave out samples only in eight-pill blister-packs. Nevertheless, the jury bought the “brown vial” theory, and held Merck liable.

Yet, despite the fact that Garza lost on appeal, the judge awarded his attorneys $2.7 million for their “salutary effect on the Vioxx litigation” in federal court. It now seems that contingency-fee attorneys’ “contingencies” entitle them to millions even when they lose.

Merck settled cases it would have won because it would have cost far more than $5 billion for it to defend the lawsuits. Attorneys who brought meritless claims walked away with more than $1.5 billion, receiving millions even for plainly bogus cases like Garza’s.

Even if you think Vioxx users should receive compensation, the Vioxx “victims” received less than half the $7 billion spent on the litigation, with the rest going to attorneys. In these desperate economic times, we’re looking for ways to stimulate the economy. One cheap way to do so without increasing government debt is to stop making it profitable for trial lawyers to lose meritless cases.

Ted Frank is an adjunct fellow with the Manhattan Institute’s Center for Legal Policy and editor of the Institute’s award-winning web magazine, PointofLaw.com.

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