The legal system, though, works in interesting ways, particularly if you hire great attorneys and victims have a weak case because like most Americans they love food more than their health.

Since two out of three Americans are out of shape and it is common to see cases of heart problems and diabetes, particularly among those who also suffered from arthritis, Merck exploited their medical histories to prove their drug was not the cause.

In a very sad development, a Texas appeals court agreed with the drugmaker that Robert Ernst did not die due to Vioxx and his wife Carol Ernst is not entitled to the quarter billion dollar damages that she initially won. In a similar case, Thomas Cona and John McDarby also lost their cases. As of now, just three cases have gone in favor of victims as the company has decided to settle the rest. In yet another victory, Merck will no longer have to pay for medical monitoring of Vioxx users not claiming injury.

Obviously, it is a great setback to consumers since pharmaceutical firms can now knowingly sell unsafe drugs and if people get killed, they have not much to lose.

Pfizer, the other company in the painkiller business, was a smaller evil, killing fewer people with its deadly painkillers Bextra and Celebrex. While the FDA forced a recall of Bextra, it put the worst possible black box safety rating on Celebrex, which is still available but not being used by any arthritis patient who wishes to live.

Learning from Merck, Pfizer is now quietly settling lawsuits relating to Bextra and Celebrex. The Times reports that the company is offering settlement amounts of $40,000 to $50,000. If you are one of the victims of these two painkillers, it may be time to approach your attorney to discuss if receiving a cash compensation may be a better option than going against a pharmaceutical company that does not care much about human life and would rather sell a deadly drug and settle later than to develop a safe drug.

It is expected that most of these victims will receive an interim payment later this year and the balance will be handed out later.

Merck had struck a deal with attorneys that left basically no choice for the plaintiffs but to join the settlement and receive whatever small amounts the company was handing out since these victims would have had difficulty finding lawyers to argue their cases.

It is estimated that as many as 60,000 Americans were killed by Vioxx and more than 140,000 suffered personal injuries.

What are the terms of the settlement?

Your total payment will be around $100,000 but depending on your agreement with your attorney (they generally take a 30-50% cut) and if you had taken a cash advance against your settlement, you will get the balance.

Should you take the settlement?

It does seem that for someone whose loved one is dead (60,000 Americans died due to Vioxx), this is a slap in their face. At the same time, if your loved one was obese, was a heavy smoker, and had other illnesses like diabetes and heart disease, it will be an uphill battle to fight the case.

It also seems that most lawyers are ready to settle and move on. You may have a hard time fighting such a case.

If you were only injured (heart attack or stroke), while you are at high risk of death for the rest of your life, it is best to take the money and run.

What are the next steps?

It is the best time to discuss your situation with your attorney. If you are not satisfied, it is still not too late to find another attorney and understand out your options.

This has been a very effective line of attack used by Merck that has won several cases using this argument even though there is no doubt that Vioxx killed as many as 60,000 Americans and injured at least twice as many. The main challenge before the victims is to prove that in the court if they have other health risks, which many Americans do considering that two out of three Americans have a weight issue.

Merck has not paid a single penny yet to even victims who have won their cases. The company is vigorously fighting each lawsuit though this is just one of the two dozen or so cases that have gone to trial out of as many as 30,000 cases.

As a result, while the company has paid over a billion dollars in fees to its attorneys, it is yet to pay a penny even to victims (Carol Ernst, John McDarby, Gerald Barnett, Mike Humeston, and Leonel Garza) who have won their lawsuits against the company.

The company also managed to successfully fend off a class action lawsuit from insurers and labor unions but the company is still in deep trouble. It faces close to 30,000 lawsuits for causing the death of as many as 60,000 deaths and 140,000 injuries.

Now in a major blow to its legal strategy, The State of New York is suing the company for Medicaid fraud. Six other states - Alaska, Louisiana, Mississippi, Montana, Utah and Texas - have sued the company for knowingly hiding the dangers of Vioxx and lying to this day about its risks that it knew.

“Merck’s irresponsible and duplicitous conduct endangered the health of New Yorkers and wasted our tax dollars,” Attorney General Andrew M. Cuomo said in a statement. “Even as evidence was piling up showing just how dangerous this drug was, Merck put profits above all else.”

“We are confident that our behavior has been responsible,” said Kent Jarrell, a spokesman for Merck’s legal defense team. A statement that surprised no one since Merck has refused to admit that Vioxx is a killer drug and that the company did anything wrong.

A lower court in New Jersey actually granted class action status but in a reversal the Supreme Court in the state has ruled that there is no justification for this simply because each company used a different set of standards.

It does not mean that their individual lawsuits will not go forward; it is just that a settlement is unlikely. Exactly what Merck had wanted - fight one lawsuit at a time.

Novartis wants to sell Prexige in the US too but it seems unlikely that after this development, the drug will be approved by the FDA.

One of those victims is John McDarby who won his lawsuit against the company but it has refused to pay. Now New Jersey Atlantic County Superior Court Judge Carol Higbee has directed the company to pay $13.5 million to he and his wife.

In related news, Avandia was about to become another Vioxx or Bextra, but it ended up being a Celebrex. While it is too dangerous to take, it will carry a blackbox warning rather than be forced off the shelves.