A staggering verdict was found in Angleton, Texas against pharmaceutical conglomerate Merck & Co. when the jury today handed back $24 million in actual damages plus an additional $229 million in exemplary, punitive damages for the widow of former Vioxx patient Robert Ernst.
The background story is that triathlete Robert Ernst had been on the prescription heart drug Vioxx and then died of what the coroner later described as “arrhythmia” or an irregular heartbeat. Ernst’s widow’s attorney argued that Vioxx had led to a heart attack that had caused the arrhythmia, not the direct death.
While Merck voluntarily removed Vioxx from the marketplace last September after studies linked Vioxx to a higher rate of heart attacks and strokes after taking the drug for 18 months, it was too late for thousands of potential victims. Ernst is the first of over 4000 lawsuits alleging injuries from Vioxx.
If this one case produces a verdict of almost $255 million, then even if only 10% of the 4000 cases already filed were settled in favor of the plaintiff, not Merck, it could theoretically cost upwards of $100 billion, a crippling blow to one of the largest pharma companies in the world.
The verdict wasn’t just based on the medical evidence, however. The jury ruled against Merck on three key questions: Merck failed to warn doctors of the dangers of Vioxx, that the drug was improperly designed in the first place (and that’s going to be just about impossible to recover from and significant fuel for attorneys representing other clients), and finally that Merck’s negligence caused the death of Robert Ernst.
Merck, of course, is going to appeal, but the writing’s on the wall, and the implication for big pharma overall is clear: you can’t risk developing new drugs at all, ultimately, because even with the best disclosure mechanisms and the best communications strategy, you can find that the little speed-bump in the testing phase comes back as a 500-foot monster and, like this Vioxx settlement, might just crush your firm.
Oh, and I don’t believe that Merck is exemplary in its communications, but it is important to recognize that they are wrestling with the problem all companies face: shareholder value or transparent communications?
I believe that this verdict will hasten product liability reform and caps on limitations on verdicts. Otherwise we’ll see that all big pharma will eventually be crushed by some drug problem or another and that we’ll end up with much less pharmaceutical innovation. Given that I believe that as a population we are becoming less healthy, and that without the continuing evolution of pharmacological medicines, we’ve got a really big public health problem coming in a decade or two.
There’s no disputing that this is a significant verdict against Merck. But what do you think about the implications for the industry, and for the state of public health?