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Lessons from the First Vioxx Verdict

By Kevin Quinley
February 28, 2006

What do you get when you cross Court TV with the Food Channel? One answer: a recipe for a multi-million dollar jury verdict! Drug giant Merck will not see such blended TV programming, but it may have seen stars after getting hit with a $253 million jury award on Aug. 19, 2005. The first product liability trial against its Cox-2 inhibitor drug Vioxx in Angleton, TX, in August, 2005 produced a quarter-billion dollar award, $229 million of which was for punitive damages. Merck plans a vigorous appeal on multiple grounds. (Reportedly, grounds for appeal include: 1) letting in testimony from unqualified experts; 2) letting in testimony not based on reliable scientific evidence; 3) allowing irrelevant but prejudicial evidence in against Merck; and 4) letting in an undisclosed “surprise” witness against Merck.) Even pro-plaintiff observers concede that the award will likely drop to “only” $26 million due to recent Texas tort reform caps on punitive damages. (Merck fared better in its second and third Vioxx trials, which ended with a defense verdict and hung jury, respectively. Three Vioxx cases down — only about 5998 to go!)

What are the lessons here for doctors and hospitals? What are the implications for defending medical malpractice cases that we can extract from Merck's Vioxx experience? Can we post-mortem the Vioxx trial in Texas to glean kernels of wisdom that will help doctors and hospitals better defend themselves? How can doctors and legal counsel defending them avoid the same fate?

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