Merck Tort the Merck Case

Merck Tort The Merck Case Though there was clearly come degree of liability on Merck's part regarding the dangers of Vioxx -- the case implies that Merck lost some cases, and it is certain that accurate warnings of the risks were not supplied to patients taking Vioxx -- the company was in no way negligent for its sale of the product. The drug received proper approval from regulatory authorities, and Merck did not knowingly or willingly expose any patients to risks without informing them.

The fact that the necessary steps in the testing and regulatory process did not yield evidence of the heart dangers of Vioxx does not constitute negligence on Merck's part. Because of this, the company might bear some liability for nominal and certainly for compensatory damages for additional healthcare costs, loss of productivity, and potentially wrongful death, but punitive damages should not be awarded as the company acted in good faith.

The fact that the company voluntarily pulled the product when evidence of the dangers came to light is a strong indicator that the company was not negligent. This does not mean, however, that proving this point again and again in court was the preferable mode of dispute resolution for the company to engage in.

The costs of litigation being what they were, it is quite understandable that the company found it better to settle the suits as a class action, rather than battling out each individual case on a separate set of facts, requiring a whole new stack of billable hours. Class actions can enable a more effective redress of grievances from plaintiffs, and can also be highly beneficial to respondents when the basic grievance is the same in every case. This certainly applies to the Vioxx case.

More than anything else, this case exemplifies a keen sense of legal risk management. The company made enormous profits from the drug while it was selling it; it was highly effective for its on-label purpose and had no known dangerous side effects.

After finding that they could be responsible for causing heart problems in patients taking the drug, the company pulled it for ethical reasons and as a means of protecting the company form legal and financial liability -- ongoing cases would have made the drug unprofitable, even with proper warnings (or so it seemed). Then, rather than pursuing cases that it was clearly winning, Merck spent less than one year's profits to settle all pending cases, coming out very much on top financially and in the clear legally.

The fact that competitors still offer similar drugs suggests that Merck might actually have been to conservative in its response to the Vioxx issue. A re-release of the drug with proper warnings could still be profitable. In a nuisance tort, one property owner.