As we have been reporting since the recall of Vioxx in late September, Merck is getting ready for a strong fight. Instead of admitting that it made a serious mistake that led to tens of thousands of deaths worldwide (Related article: Why Merck did not recall Vioxx?), the company will instead try to prove that victims who died did not die due to Vioxx but due to other causes. Similarly, those who suffered heart diseases, other cardiovascular complications, and side effects, will have to prove that Vioxx was the reason for their illness. Merck will use every argument in its arsenal to make it difficult for each Vioxx victim to get a penny out of the company despite the fact that analysts expect that Merck's Vioxx related liabilities may be as high as $38 billion.
While some data has been published that shows that Vioxx was more likely to cause heart problems than other drugs, it may not be so easy to establish in individual cases that a death occurred solely due to Vioxx. Since each Vioxx victim will have unique medical condition, it may be difficult to certify these cases as a class despite the efforts of lawyers active in this area. A panel of federal judges is scheduled to decide in January whether to merge Vioxx cases against Merck around the country in one federal court for consolidated or coordinated pretrial proceedings, as well as to choose the judge who will hear the case.
To mount such a big fight will be very time consuming and expensive. So Merck is reaching out to some of the top law firms in the country to work on the case. Lily Henning of the Legal Times is reporting that the company has hired a handful of firms for its defense despite the fact that it does not like outside firms and relies heavily on its in-house lawyers.
Hughes Hubbard & Reed, a 300-lawyer New York firm for which Merck is already a major client, is serving as the Merck's national counsel in the Vioxx suits. Reed Smith, Baker Botts, Dechert, and Venable have also been hired, according to court filings.
It has also been reported by Henning that Merck is trying to pick the courts in such a way that they will favor its position. For instance, it is trying to get appeal hearings in front of the Fourth Circuit, a court that is highly conservative (most appointments were made by Republican presidents) and typically favors corporations over Americans.
While having such high profile law firms means that Vioxx victims will have to be extra careful in picking their attorney (Related article: How to pick a Vioxx attorney?), it may also mean that the company may be mired in legal troubles for years and eventually go out of business or be acquired for peanuts. It is already being reported that Merck employees have started to look for new opportunities outside Merck.
Recommended link: Complete coverage of recall of Vioxx and lawsuits against Merck