Vioxx shows need for civil justice system

September 27, 2005 – I took columnist Michael Kinsley’s advice (“Taking Vioxx – for Plenty,” Aug. 28) and “googled” Vioxx. The first result was Merck’s own Vioxx Web site (www.vioxx.com), which complains that the drug giant did nothing wrong, that it was subjected to an unfair trial, and promises to continue its scorched-earth legal policy of forcing victims to trial.

What I did not find were the facts. The truth is that David Graham, a scientist at the Food and Drug Administration, has estimated that Vioxx contributed to the deaths of as many as 55,000 Americans.

Documents revealed in the Vioxx trial show that Merck was aware of the cardiac risks of Vioxx as early as 1997. The company’s top scientist stated in March 2000 that a clinical trial of Vioxx confirmed that the drug had heart risks. In fact, this clinical trial showed that the drug caused five times as many heart attacks as another pain relief drug. Merck executives ignored an FDA request to add a warning label to Vioxx for four months, because they calculated they could make an extra $229 million by waiting.

Mr. Kinsley ridicules the request to add a warning label to Vioxx as akin to adding a label to a beach ball warning not to saute and eat it.

He completely misunderstands the legal doctrine of “duty to warn,” and his analogy is absurd. Merck executives had a legal responsibility to inform physicians of the risks of their product, so those physicians could help patients make informed decisions about their health care.

Instead, Merck executives produced a document called “Dodgeball” to train their drug reps how to “dodge” questions from doctors about the cardiac dangers of Vioxx. Doctors who weren’t fooled by Merck’s deceptive marketing of Vioxx were targeted by the company. Merck worked to discredit these doctors and even threatened Stanford University scientists who questioned the drug.

Merck executives knew about the danger of Vioxx, they trained their reps to cover it up, and then they spent more than $500 million marketing the drug to an unsuspecting public.

Mr. Kinsley doesn’t believe that Merck executives “did something terribly wrong in putting Vioxx to market.” Well, a jury of ordinary Americans disagreed, and given the facts of the case, it’s easy to see why.

The headline-grabbing $229 million punitive damage award decided on by the jury was not chosen at random, but represented the exact amount of money Merck made by delaying changes to the drug’s warning label.

Like all Americans, I’m sure the members of this jury rely on prescription drugs to keep them healthy and help make them well when they are ill. They just want to know that our families’ lives matter as much to the corporate executives marketing these drugs as their corporate profits.

As Marsha Robbins, the forewoman of the jury, said, “We expect accountability, we expect them to be open with us, we expect them to be honest with us.”

“Stop doing the minimum to put a drug on the market,” juror Derrick Chizer said. “Go out there and do your very best…. Merck makes a lot of medicines. They’re staking our lives. Be responsible.”

Whether the verdict really makes drug executives responsible remains to be seen – Texas law reduced the punitive damages by 99 percent, to $1.6 million. Compare that to the more than $10 billion in Vioxx sales Merck made between 1999 and 2003, and the $37.8 million that Merck’s CEO made in 2004 from a salary, bonus, and stock options that he cashed in.

Mr. Kinsley suggests that it’s inappropriate for the civil justice system to police the drug industry. But if the regulatory system could do its job right, the lawsuits over Vioxx, Baycol, Rezulin, PPA and Fen-Phen, just for a few examples, would never have been necessary, and tens of thousands of American families wouldn’t be mourning the loss of a loved one.

Mr. Kinsley joins many in the media in not being able to say one good thing about the civil justice system. Ironic that he is trying to turn into a negative a case that actually illustrates how, for ordinary Americans, the civil justice system is the last check – and sometimes the only check – against corporations that would put profits before the health and safety of their own customers.

Vioxx was supposedly a blockbuster pain killer. It turned out to be a plain killer. Too bad Mr. Kinsley doesn’t know a beach ball from a pill. I hope his doctor does.

Mr. Suggs, Immediate Past President of the American Association for Justice, is a partner in the Columbia law firm of Janet Jenner & Suggs.

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