Merck continues to fight against Vioxx Plaintiffs. This week the much anticipated VIOXX® product liability trial started in the Circuit Court of Hillsborough County, Florida. Merck plans to use evidence to show that VIOXX did not cause the heart attack of Refik Kozic.
In Kozic v. Merck & Co., Inc., Mr. Kozic claims that he used VIOXX for approximately nine weeks before suffering his heart attack in April 2001 at age 50.
Merck will handle this case and go on to their additional 27,000 Vioxx cases. Their legal strategy take each and every case to trial. Experts though three years ago it would cost Merck approximately $30 billion. However, to this date they have not paid anyone claiming they had a heart attack due to taking Vioxx. The only thing that Merck has been paying over the years are legal bills to defend themselves against all the individual Vioxx claims. According to Ken Frazier, the company's lead counsel early on, Merck vowed to fight the cases one at a time, in an article on Cnn.com. I agree with Bryan Liang, Professor of health law studies at the California Western School of Law in San Diego, that it was "brilliant strategy to tell the world, they were going to fight every case." It definitely, places Merck in the stronger position.
Now on the other side of the argument, Byron G. Stier, Associate Professor of Law
Southwestern Law School, and a leading Editor for the Mass Tort Litigation Blog, disagrees with Professor Liang's assessment of the Merck strategy. He candidly weighs in giving two strong arguments. Professor Stier said: First, "the strategy of holding off settlement is only working for Merck because Merck is winning the individual cases." Second, "the strategy of holding off settlement is only working for Merck because Merck is winning the individual cases." Both professors make valid arguments, however, they lead to additional questions: "Why is Merck so successful with their Vioxx cases? What makes this drug bullet proof in the courtroom on appeal? Is Ken Frazier and his legal team, that much better than all of the brilliant trial lawyers they are going up against in Court?
Time will tell if Merck and Vioxx will continue on lucky streak in these trials or if their luck runs out