According to Merck, it is being buried under a mountain of Vioxx related lawsuits as more and more Vioxx victims come forward to sue the company for causing as many as 60,000 deaths. The FDA estimates that 140,000 personal injuries have been caused by Vioxx. Legal experts put the total number of expected lawsuits at over 100,000 and so far 4,100 lawsuits have been filed.
The first ever trial in the case of Carol Ernst is underway in Texas and so far the evidence presented by Mark Lanier, the plaintiff’s attorney, has built a solid case proving that Merck knew even before Vioxx was commercially launched that it was a dangerous drug. The company decided not only to market the drug aggressively but also abandoned any efforts to confirm the safety of the drug (fearing that facts may be detrimental to sales). Lanier also convinced the jury that Merck lied to doctors when it reported the cardiovascular risks of Vioxx.
In never-before disclosed evidence, Lanier also presented documents and videos that clearly show that Merck deliberately hid risks from patients, doctors, FDA, and maybe even its own staff. Using games like Dodge Ball, Merck trained its salespeople to avoid questions related to dangers of Vioxx. Merck’s marketing department was deliberately developing a strategy that was designed to understate the risk and talk only about the benefits. This has surprised most drug industry watchers who used to think of Merck as a company “where patients come first.”
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That is exactly what Mark Lanier was able to prove in his arguments. It is now pretty clear that as has been charged in the past, Merck did hide the risks of Vioxx. In the ongoing Vioxx trial in the lawsuit filed by Carol Ernst, the evidence presented by attorney Mark Lanier shows that Merck did not tell doctors what it told the FDA. This could have serious implications for Merck since the company has absolutely refused to acknowledge that anyone has ever died after taking Vioxx. According to FDA estimates, however, over 50,000 Americans alone have died and approximately 140,000 injuries are attributed to the drug.
While a lot of the evidence about Merck’s aggressive strategy to sell Vioxx and to generally not disclose the risks of Vioxx has been in the public domain for months now, this piece of evidence was disclosed only yesterday.
Drug companies in America often do not often disclose the risks of their drugs. To add to that problem, American doctors do not keep up to date with medical research and often rely on drug sales rep to provide them with information on drugs. This creates a very sad situation in which the doctors essentially tell patients what the drug companies want them to hear. Since drug companies often have complete control over what doctors know about drugs (they also provide financial and other incentives to doctors), Americans never really get to know the risks of a drug. Similarly, drug companies, through direct-to-consumer advertising, can also control what an average American knows about a drug.
Merck has been widely known to drag its feet on label changes for Vioxx to highlight its risks. The company also used aggressive sales reps who trained using games like DodgeBall to avoid questions from doctors. While it received warnings from FDA, the company did nothing to tell Americans about dangers of Vioxx. While Merck exploited its close relationship with FDA, behind their back, Merck called them with offensive names when FDA officials asked for label changes on Vioxx.
In the meantime, Judge Eldon Fallon announced that the first federal Vioxx trial will begin just after Thanksgiving. Merck is expected to face over 100,000 lawsuits over Vioxx recall.
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As horrified Vioxx patients worldwide hear Mark Lanier, attorney for widow Carol Ernst (whose husband Robert Ernst died after taking Vioxx), it seems that Merck not only intimidated critics of its drug, it also tried “neutralize” anyone who did not agree with it. The term “neutralize” is often used in battlefield strategy as a way to “eliminate” your enemy, and sometimes in business, for similar situation. As previously reported, Professor Lee Simon of Harvard University was threatened by Louis Sherwood, then a senior vice president at Merck, for raising questions about Vioxx. Dr. Gurkirpal Singh was also threatened by Merck after he requsted some data on Vioxx as part of his research.
Merck developed a hit list of doctors who were “unfriendly” to Vioxx. Merck’s strategy was either to convince them to buy its aggressive marketing story or Merck would discredit them. Merck had an army of approximately 5,000 Vioxx sales rep who got ready after playing games like “DodgeBall” (how to dodge questions about Vioxx safety from skeptical doctors?). Professor Simon eventually did not get promoted after Merck was able to discredit him in medical circles. (Related article: Is Merck as bad as it is made out to be?)
The ongoing Vioxx trial in Texas is so far not going very well for Merck and since many experts believe that the company generally has a weak defense, it has decided to fight each lawsuit individually. By doing so the company can not only drag the process for years (even decades), but also limit the amount of its Vioxx liabilities. An out-of-court settlement with all Vioxx victims may cost approximately $38 billions, according to estimates prepared by financial analysts.
Since this is the first trial among the 100,000 or so lawsuits against Merck, it is too early to draw any conclusions. A victory for Merck may give their legal team a morale boost, but since each case will be tried independently, it has no bearing on other Vioxx cases expected to go on trial in the future. A loss for Merck will, on the other hand, be disastrous for the firm.
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