« Law - "Why ethics involve more than free golf" | Main | Ind. Law - More on "Local zoning issues may become a federal case" »

Sunday, August 21, 2005

Law - Analysis of the Vioxx trial

In the Business Section of the Sunday NY Times is an interesting analysis of the Vioxx trial headlined "For Merck, Vioxx Paper Trail Won't Go Away." The lead:

HOUSTON, Aug. 20 - Bad facts. Plaintiffs' lawyers love that term. Merck may grow to hate it.
More from later in the piece:
As Merck examines its defeat in Texas, it may be tempted to blame its problems on the ineptitude of its lawyers, who committed basic mistakes like failing to prepare witnesses and badgering Mrs. Ernst, a sympathetic widow, for 90 minutes on cross-examination.

Merck may tell itself that the part of Texas where the case was heard is favorable to plaintiffs and that the trial might have turned out differently elsewhere. It might even say that W. Mark Lanier, the Houston lawyer who represented Mrs. Ernst, is so skilled that he won a case that most other plaintiffs' lawyers would not even imagine bringing.

All those responses have an element of truth. Unfortunately for Merck, they hardly begin to explain the enormous verdict, which the jury of seven men and five women in Angleton, Tex., about 40 miles south of Houston, returned on a 10-2 vote.

The real explanation may lie in the "bad facts" that Mr. Lanier presented to the jury.

Mr. Lanier offered jurors a trove of company documents and e-mail messages that revealed how Merck researched Vioxx's heart risks and presented what it knew to doctors and consumers. The documents showed that scientists at Merck were worried about Vioxx's potential cardiovascular risks as early as 1997, two years before Merck began selling the drug.

"The possibility of increased C.V. events is of great concern," Dr. Alise Reicin, a Merck scientist, wrote in a 1997 e-mail message; "C.V. events" is scientific shorthand for cardiovascular problems like strokes or heart attacks. "I just can't wait to be the one to present those results to senior management," Dr. Reicin's message continued. * * *

Mr. Lanier also introduced a marketing videotape that showed Merck sales representatives being trained to view doctors' concerns about Vioxx's heart risks as "obstacles" to be avoided or dismissed. Another marketing document taught representatives to play "Dodgeball" when doctors voiced concerns. * * *

In the courtroom immediately after the verdict, a reporter asked Mr. Lanier how he had won the case. "The documents," he replied. "The documents tell the truth."

Now the documents may haunt Merck in every Vioxx lawsuit that reaches a jury. And Merck may face even more bad facts in future trials, as the other lawyers suing the company work their way through the trove of 7 million papers that Merck has already produced, said Richard T. Evans, a drug industry analyst at Sanford C. Bernstein & Company.

Meanwhile, federal prosecutors are conducting their own criminal investigation of Merck, and with their broad subpoena power they may find documents that plaintiffs' lawyers have not yet uncovered.

The Washington Post has a story today that asks: "Are Drugmakers Down for the Count?" Some quotes:
Although the Texas award is almost certain to be reduced, the industry's legal woes are just beginning. There are already more than 7,500 suits pending against Merck, and thousands more may be filed against other drugmakers with painkillers in the same class as Vioxx that also have been pulled from the market. * * *

Other broad challenges facing the industry include the impending loss of patent protection for many of today's top-selling drugs, along with a dearth of replacements in the pipeline. The future seems to lie with biotech drugs and genetic fixes that lie outside the traditional competencies of large pharmaceutical companies.

The business and regulatory environment has also turned hostile in response to escalating drug costs. State governments are threatening to import drugs from countries with lower prices, and Democrats in Congress want the federal government to negotiate prices directly with the manufacturers. Meanwhile, newly powerful pharmacy benefit managers have driven down wholesale prices by using financial incentives to get consumers to switch to cheaper generic alternatives. The efforts have been so successful that three of the largest such firms just reported record, or near-record, earnings.

On another front, the industry, faced with public backlash, has been forced to adopt voluntary curbs on its direct-to-consumer advertising.

Critics have long complained about the cozy relationships between drug companies and doctors. But the Journal of the American Medical Association opened another front in the war against unethical practices by exposing a widespread practice of doctors receiving fees from investors and industry analysts to give them early, inside information about drug trials still in progress.

Posted by Marcia Oddi on August 21, 2005 03:13 PM
Posted to General Law Related