Vioxx suit tally: 23,800 cases for 41,750 plaintiffs
This morning Merck announced the number of Vioxx-related lawsuits that had been filed against it as of September 30, 2006. That date is crucial, because it represents the second-year anniversary of the company's withdrawal of Vioxx from the market, and the vast majority of states have either one- or two-year statutes of limitations for personal injury suits. According to Vioxx plaintiffs lawyer Mark Lanier, only seven states remain with statutes of limitations that have not yet expired. So we're getting close to the grand totals.

As of September 30, 2006, Merck had been hit with 23,800 suits on behalf of 41,750 "plaintiff groups." (A plaintiff group might include the spouse or dependents of a victim, who might be alleging "loss of consortium" or other damages related to the loss of a loved one or breadwinner.) In addition, the company now faces 275 class actions, either for personal injury or economic damages (including consumer fraud suits, seeking reimbursement for patients' costs of buying a drug that was allegedly misrepresented as being safer than it really was, even if nothing bad ever happened to the purchaser as a result.)

The September 30 date is important for another reason. Because most of the filing is complete, Merck can realistically begin to consider moving toward a settlement strategy without worrying that its willingness to settle would entice a deluge of suits by lawyers and clients seeking quick and easy money. Though the company is still pledging to fight every one, that might be a posture it can begin relaxing. Says Lanier in an email: "Merck is going to have to come up with another strategy than to try every case. Aside from the fact it abuses the court system (the corporate version of lawsuit abuse), the next 12 months Merck will sustain some real significant losses."

Merck also announced today that it would increase its reserves for Vioxx-related legal defense costs from $685 million to $958 million, and said it had spent $325 million on defense costs during the first nine months of 2006. The company has not yet allocated any reserves toward paying Vioxx-related judgments or settlements.

MERCK REPLY: I solicited a received a comment from Kent Jarrell, a spokesperson for Merck's outside law firm, Hughes Hubbard & Reed. Here his comment in its entirety:

"You are correct that in most states the statute of limitatations has now run. But by our count when it comes to personal injury lawsuits, there are still 28 states with longer limits and in death cases, there are 16 more states.

"The last minute increase of filings just before Sept. 30th 2006 is not unexpected. Generally this tide of 'deadline beater' cases turn out to be comprised of weaker cases. Plaintiff lawyers faced with a filing deadline want to avoid malpractice claims from their clients for failing to follow through and actually filing their cases.

"As we examine cases, we are finding, time after time, that the allegations are not backed up by facts. The claims of over 3,000 plaintiff groups have been dismissed to date. More specifically, there have been over 1,100 plaintiff groups whose claims were dismissed with prejudice either by plaintiffs themselves or by the courts. Over 2,000 additional plaintiff groups have had their claims dismissed without prejudice. Almost 800 plaintiff groups had their claims dismissed by courts because plaintiffs did not submit fact sheets or were dismissed by plaintiffs themselves after Merck noted their failure to submit fact sheets.

"From the beginning, Merck has said it would look at this litigation on a case by case basis. That is exactly what we have been doing. It takes resources to back up our ongoing strategy and that is what this reserve increase is all about. We face a rigorous trial schedule for the rest of this year and into next year. We have the legal infrastructure in place across the country to ensure that we continue engaging in a vigorous defense of this litigation.

"Remember, it is the plaintiffs who are responsible for filing cases. They
now seem to be frustrated by the very fact that Merck is closely examining each one on an individual basis and is prepared to go to court to defend the cases."
Posted by Roger Parloff 11:02 AM 9 Comments comment | Add a Comment

Go Merck Go. I am tired of the costs and friction that frivolous lawsuits impose on our economy. If more corporations behaved as you are, vigorously challenging every questionable claim, then perhaps these blackmailing attorneys and their clients will find more productive ways to earn a living.
Posted By Lee Otis, Phila, PA : 2:50 PM  

I agree with Lee's comments. Kudos to Merck! The detriment that frivalous lawsuits have on the US economy is outrageous. When these lawyers finally have to "pay" with lost time incurred on these frivalous lawsuits the sooner they may stop being filed. Also, it would be great to see some legal developments that provide consquences when these frivalous lawsuits are "dismissed with prejudice" are also met with some penalties that are levied against the plaintiffs AND their attorneys. Let me also say that I am sure that not every one of these cases is frivalous, but just with what is noted in the article thousands of them already have been found to be and I am sure thousands more will be determined to be frivalous as more facts are uncovered.
Posted By Mike, Simsbury, CT : 4:51 PM  

I do buy it! Though I cannot determine who "crafted" the agreement, I find it refresing that two leading players in the industry can partner to improve interoperability between the products. This can only benefit the consumer and businesses. The free market in indeed alive and well!
Posted By Maria Sullivan, Newton, MA : 12:03 PM  

Mike and Lee, you consider people dying from a so-called safe product a "frivalous lawsuit"? I agree America is hurting from other frivalous lawsuits but Merck should be responsible for the deaths and injuries caused by its obviously faulty product. Pharmaceutical companies are ruthless. They charge people an arm and a leg for pills that cost them next to nothing to make. This leads to some people not being able to afford thier medicine. These companies spend billions of dollars each year marketing these products that are addictive and in this case deadly. These companies aren't out to help people, they are just out to help themselves. Thier profit is thier bottom line and they could care less about the safety of thier products.
Posted By Thomas Kelley, New Hartford, NY : 3:59 PM  

There is nothing frivolous about a Vioxx lawsuit where a victim suffered a heart attack or stroke. The company itself deemed the product defective when it removed the drug from the market. If Merck basically deems a product defective and the scientific and medical communities prove that the drug does cause heart attacks and strokes (which it does), then what could make a Vioxx claim frivolous at all. It sounds entirely legitimate. Then, when you factor in that they knew about the problem for years and just didn't want to disclose the risks, you understand that these folks will put profits over people every day of the week.
Posted By Jerry Harris, Longview, Texas : 6:20 PM  

I agree with Lee and Mike, Go Merck Go! I hope this becomes par for the course with companies that, in the past, have rolled over and paid these legal extortionists! Fight the good fight Merck!
Posted By Misty Meanor, San Francisco, CA : 6:35 PM  

I think people need to understand that with everything in life there comes a risk. Everytime you get behind the wheel of your car, you take the risk that when you go out you might die in an accident whether it is your fault or someone elses. Merck acted according to the data that they had, and Vioxx was pulled when new data from a clinical trial was evaluated. If you read the reports, the wife of the CEO (Ray Gilmartin) was taking Vioxx at the time it was pulled. The fact that people are winning the lottery off of unfortunate side effects of a drug that helped millions and hurt so few in comparison is like saying we should sue all car makers and get rid of the car because fatal accidents happen multiple times each minute. I think the American public needs to start taking more responsibility for their health, quit suing over every consumer product (including pharmaceuticals), and reduce the number of frivolous trials so that those who are truly hurt and harmed can receive justice.
Posted By John Smith, Pittsburgh, PA : 10:32 PM  

No drug is 100% safe nor do they claim to be. This, like most cases, is about making money for lawyers. If they really did care about their individual clients they would never agree to class action which always results in
1- lower payouts for individual plaintiffs and
2- more fees for lawyers at a lower cost to them.

Lawyers could care less about whether their client was wronged or not, telling the truth or not, injured or not. All they care about is:
1-Will a jury believe this story
2-Is their somebody with money who can be named in a suit
Posted By Glenn, Atlanta, GA : 11:33 PM  

It is very wrong how these suits are handled.A lot of us suffered more than just heart attacks. We also have lost marriages and being able to do things with our children.As usual companies with big money do what they want to the little guy who suffer the most.
Posted By Ron Brooks Truro, Nova Scotia : 2:02 PM  

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About this blog
This blog is about legal issues that matter to business people, and it's geared for nonlawyers and lawyers alike. Roger Parloff is Fortune magazine's senior editor (legal affairs). He practiced law for five years in Manhattan before becoming a full-time journalist. To join in the discussion or suggest topics, please email