Vioxx Tort Vioxx and Tort

Vioxx Tort

Vioxx and Tort Issues

Product liability essentially follows the manufacturer of the product; as long as consumers used the product in keeping with recommendations and/or instructions and nothing was mishandled by distributors or retailers, then any injuries or damages resulting form the sue of the product are the liability of the manufacturer. In this case, Merck definitely bears some liability for the health concerns caused by taking Vioxx, even though the drug was properly tested and approved according to the details of the case. Liability does not imply negligence, however, and because Merck appears to have acted responsibly and in the best interests of its consumers throughout this case, it is not reasonable to accuse the company of real negligence. This also has some impact on the type of damages that could be awarded; without evidence of real negligence, punitive damages cannot be awarded. In addition, without evidence of actual monetary losses compensatory damages cannot be sought. Nominal damages can be sued for simply based on the evidence that harm was caused.

It seems likely that Merk would have won the majority of the lawsuits it settled, given the fact that it won most of the first twenty cases that actually went to trial. Litigation is often more expensive than other means of dispute resolution, however, and this was clearly the case with the Vioxx trials. Merck has to spend over a billion dollars in order to win its cases in court, and it was going to need to spend many times that in order to win the other cases that were being brought against the company. Instead, the company decided to settle for a much lesser amount than its legal costs would have mounted to, despite its likely victories.

Class actions represent a consolidation of power by plaintiffs and alleged victims in a case, allowing groups of plaintiffs to consolidate their cases and seek a single judgment for collective damages. Though this is primarily a way of strengthening each plaintiff's case and their cases as a whole, it has certain benefits to defendants as well. By dealing with the Vioxx cases as a class action and coming to an out-of-court resolution with the class action, Merck avoided incurring additional legal costs in resolving or bringing to trial each of the individual cases that it was faced with. This is one way of managing the legal risks of the company; given a different set of circumstances, it might have been advantageous to try each case separately and many cases might have been dismissed due to lack of merit; in this case; the harm caused was fairly evident and materially the same in every case, so the legal exposure would have been increased by severing (or attempting to sever) the cases.