Jun 2 2008
State appeals courts in New Jersey and Texas last week "delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller," an indication that "some sanity still exists in the tort system -- at least at the appellate level," according to a Wall Street Journal editorial.
The editorial states, "At the beginning of the Vioxx hysteria, some analysts predicted Merck's liability could spiral as high as $30 billion, threatening the company itself," but Merck last year settled most of the related lawsuits for $4.85 billion. According to the editorial, "only three of the 20 suits that have gone to juries have ended favorably for plaintiffs," with "other reality checks along the way: Vioxx plaintiffs were denied class-action status in a federal court in 2006 and by the New Jersey Supreme Court last year."
The decision by Merck to "pull Vioxx from the shelves in 2004 may have been self-protective corporate strategy, but it wasn't a medical indictment of the drug," the editorial states, adding, "Cardiovascular risks have been shown to emerge only after a year and a half of constant use," and many "patients and doctors would like to see Vioxx back on the shelf as an option to ease otherwise intractable pain." The editorial states, "All drugs have risks, and the danger in the Vioxx case was that a tort frenzy would destroy an industry that provides jobs and vital therapies to millions of people," adding, "We're glad the courts are allowing reason to prevail."
Pre-Emption
In addition, the editorial states that the decisions last week also "are especially important in the message they send regarding federal pre-emption, the topic of a pending case at the U.S. Supreme Court," as the New Jersey appeals court ruled that the "plaintiffs were not eligible to receive punitive damages under state law against a drug that had been approved" by FDA.
"Without pre-emption, the danger exists of wholesale looting of the drug industry, a source of global U.S. economic advantage," the editorial states (Wall Street Journal, 5/31).
 This article was reprinted from khn.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.
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