Greed in Disguise

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Last month in Atlantic City, N.J., as part of a team of trial lawyers, I represented the members of two families profoundly affected by the dangerous effects of a drug called Vioxx.

The jury awarded actual and punitive damages against Merck & Co., the manufacturer of Vioxx. Jurors found that Merck intentionally withheld important information about Vioxx’s dangers from the Food and Drug Administration. Merck deliberately chose not to give the FDA the information even though the law required it. The critical information was analysis Merck experts conducted in 2000 linking Vioxx to an increase in heart attacks. Merck waited four more years before admitting the dangers and pulling the drug off the market.

Following the verdict, we have seen the predictable rumble from voices for so-called “tort reform.” According to their argument, sleazy trial lawyers are hurting society by launching “frivolous” legal assaults against benign companies that at worst, are simply cutting a few corners. Reminiscent of a rebellious teenager seeking liberation from a responsible parent, “If we could just stop trial lawyers from monitoring our actions,” they say, “We could make a heck of a lot more money!” Multi-billion dollar corporations and their highly paid lobbyists are now begging politicians to protect them from honest rulings by citizen juries.

It is sad to see politicians so eager to strip us of the right to trial by jury. Instead of letting fair juries decide disputes, these voices call for Washington to decide what ethical and proper behavior is. Quite a shock when you think about it: Trust the politicians to decide ethics instead of the American people.

Consider the two recent cases I tried against Merck, one in New Jersey and the other in Texas. In New Jersey, jurors awarded $13.5 million to plaintiff John McDarby, after hearing evidence that the company repeatedly failed to warn consumers about its own research data. That data disclosed that Vioxx users were up to eight times as likely to suffer from heart attacks when compared to users of other arthritis drugs. The jurors agreed that Vioxx had contributed to causing Mr. McDarby’s heart attack. He’d taken Vioxx for four years.

In the Texas case, tried last August, jurors punished Merck with a $253 million verdict that will be reduced to $26.3 million under state law. This jury ruled against Merck on each of three key questions: Yes, Merck failed to warn doctors about the danger posed by Vioxx; yes, the drug was improperly designed, and, yes, Merck’s negligence caused the death of Robert Ernst, a physically fit tri-athlete.

To suggest these verdicts are the result of ignorant or “runaway juries,” somehow being hoodwinked by the showmanship of crafty trial lawyers, is a stunning insult to the American people. It also represents a malicious and calculated attack on the U.S. civil justice system that shows an immense distrust of common Americans and the jury system. (These same jurors we trust to decide death penalty cases.)

The truth of the matter is these verdicts are just and fair: Consider:

1. A Merck placebo study, buried by Merck, showed that Vioxx doubled the risk of heart attack after just 6 weeks and not only after 18 months as the company previously disclosed. (And yes, Merck had that study back in 1999!)

2.The Merck handbook shows that heart arrhythmia, which caused the death of Robert Ernst, can be caused by a heart attack. Merck is conceding that Vioxx can cause heart attacks but claiming it doesn’t cause heart arrhythmias. That’s like arguing that someone who bled to death from a gunshot wound could never be linked to the one who shot him. “The bullet didn’t kill him, lack of blood did,” the argument goes, ignoring the fact that the bullet caused the bleeding.

3. Merck conducted an exhaustive analysis revealing the increased risk of heart attacks caused by Vioxx compared to all other drugs and placebos in 2000, but deliberately withheld it from the FDA.

4. Merck decided that if the company could downgrade the FDA’s requested warning about Vioxx causing heart attacks to a mere precaution, Merck could save more than $1.5 billion in sales.

5. Merck received approximately 20 letters from the FDA about its repeated failure to fairly disclose safety risks posed by its drugs. The FDA called it a “corporate pattern and practice” of failing to disclose risks.

These Merck documents represent a mere grain of sand in the mountain of scientific material that critics of these verdicts either ignore, don’t know, or deliberately mislead as part of their tirade against the “evil” trial lawyers. The best science in these trials supported the verdicts. The witnesses we used included Dr. Eric Topol (by all accounts a top cardiologist in the world) and Harlan Krumholz, a top Yale Cardiologist. Merck, meanwhile, used a country cardiologist who has lost his board certification. As we say in the trial bar, res ipsa loquitor or “the thing speaks for itself.”

For anyone who genuinely cares about truth and safety and the responsibility of Corporate America, I believe it’s essential that both sides of the story be told. In that way the American public, in much the same manner as a jury of 12 can make judgments based on the facts. At stake, heaven forbid you should need it, is the right to have your day in court.

Mr. Lanier is a trial lawyer.


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