Tuesday, August 30, 2005

Merck, Vioxx and You

I don’t know how you feel about the recent $253 million Vioxx judgment against Merck. If you subscribe to the stereotype that pharmaceuticals are big evil entities that care only about making money, then you’re thrilled. If you subscribe to the stereotype that vulture trial lawyers use sleazy tactics to bleed a legitimate corporation, then you’re depressed.

I think both stereotypes are excessive, but I’ll tell you what bothers me. Several jurors admitted, without any sense of regret or embarrassment, that they basically ignored the science that Merck presented. The science indicated, not with 100% certainty but certainly well beyond “a reasonable doubt”, that the plaintiff’s husband did not die from using Vioxx. But the jurors didn’t care about that. They conceded that they found the science boring and irrelevant. The only thing that aroused them was Merck’s “apparent” decision to conceal from the public certain experimental findings which suggested that the painkilling drug might lead to cardiac problems—hence the $24 million to plaintiff Carol Ernst for mental anguish, and $229 million in punitive damages to punish the bastards at the big, cold, heartless corporation. Yes, Texas law will cut that award significantly, but the damage is done, and at this point there are 4200 more lawsuits representing 7500 plaintiff groups coming up. I’m sure that with this verdict, those numbers will grow. I can just see a bunch of Vioxx users, and lawyers, thinking, Hey, Merck is rich. Let’s get in on the action.

I have no problems holding Merck financially accountable for either withholding data on health effects or for promoting a drug that actually caused somebody’s death—as long as there is real, non-junk scientific evidence to support both claims. But it seems to me that we are on a very slippery slope when the main motivation of jurors is to stick it to a company as much as possible because it’s big. No company is big enough to withstand thousands of mega-million dollar verdicts. Merck stock is off 40% and even if the company doesn’t fold outright, it won’t see any earnings growth for the rest of this decade.

Tough luck you say. Fine. But who is going to develop and make the new medicines we depend on? There are risks and nasty side effects to every drug you take; check out the warning labels. Further, you know this decision will impact every other drug companies. How likely are they to take the kinds of long-term risks we want them to take in developing the kinds of medicines we hope they’ll develop? Remember that Vioxx has been a great drug for millions of people, better for them than anything else on the market. It’s off the market now, and who knows what else in Merck’s pipeline (and Glaxo’s, and Pfizer’s, and Shearing Plough’s, etc.) is off the R & D fast track now as well.

I’m not an apologist for Big Pharma. Merck ought to pay when the evidence clearly demonstrates that a customer died because the company failed to disclose data that would have convinced the customer and his or her physician to avoid the drug. Personally, I think that will happen in some trials, but it didn’t happen in this one. Instead, a lynch mob mentality among jurors coupled with straight-up greed among lawyers created a huge precedent that will have a significant impact on Merck and other pharmaceuticals. Some of that impact will be good, like more disclosure with side effects. A lot of that impact will be bad--depressing risk and investment for next-generation drugs. And that will impact me and you, unless we want to rely on trial lawyers for new medicines.

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