Complaints, yet no solutions.
Well, technically, it’s always the season for that. Lawyers, especially trial lawyers, are easy targets, because they are generally conceived of as something between extortionists and hypnotists, able to weave words that cause twelve good men and true to abandon their good sense and concentrate on getting some opportunists paid.
The article is noteworthy for what it doesn’t say as much as it does. It opens with the horror that plaintiffs lawyers, after assembling their case, are willing to share that case with fellow lawyers so that an action can be successfully prosecuted, without the cost of locating all the witnesses. The horror!
The general tone of the piece is solidly anti-lawyer and anti-mass tort. The word choice, the wonderful word choice, clearly leads the reader along. Lawyers seem to be ganging up on poor companies, especially drug companies that are silly enough to try to pull a product off the shelve when safety concerns developed. In this age of mass torts
“A corporate defendant cannot afford to defend thousands of cases where there is an alleged mass disaster at one time,” Mr. Herman said. So true. If we’ve learned anything as mass torts have evolved over the last decade, it is that it scarcely matters anymore whether the facts are on the plaintiffs’ side[.]
But here is where what is unsaid in the article becomes important. The litigation in question is about Vioxx, and at no point does the author suggest that Vioxx was safe. Nor does he suggest that Vioxx does not increase the risk of heart attack, nor does he deny that Merck tried to ignore the increasing evidence of risk. In fact, the author acknowledges that company sacrificed science in favor of profit-making.
“Once a drug has been approved, there is a marketing enthusiasm that takes over that doesn’t want to deal with the risks and wants to promote the drug,” said Bruce Psaty, a drug safety expert at the University of Washington. At Merck, Dr. Psaty added, “there was a kind of studied ignorance” of the possibility that Vioxx could increase the chances of a heart attack — even after one study, called Vigor, suggested that the drug could quadruple the heart attack risk.
So why does Merck deserve our pity? Why should it be protected from the grasping, conniving lawyers? Because the
potential side effect is one of the most common serious conditions known to mankind: a heart attack.
Of course, all of the studies, even from before the FDA approved the drug, indicates that Vioxx does increase the risk of heart attacks. But it’s a common condition.
Move along. Nothing to see here. Heart attacks happen anyway.
There are no suggestions of what a better system would be. No suggestions of why Merck might have ignored evidence of the health risk of their drug, no excuses for letting marketing enthusiasm replace concern for the consumer.
The complaint of the share of legal fees is the only aspect of the critique that carries some weight, once you get past the weasel words. But even that rings hollow without an alternative. Yes, there are high legal fees to be had, but that is because there are large settlements. And maybe next time Merck will consider a little longer, investigate a little more thoroughly.
Without an alternative, I’m happy with that outcome. The injured get paid, the people who argue it take a share, and the people who concentrated on profit above health get a lesson.
Oh, wait, because the settlement was smaller then expected
the stock jumped when the $4.85 billion deal was announced.
The author is right when he suggests that there must be another way. That way involves actually punitive damages.
But then the lawyers would make more money. And we just can’t have that.
