The Merck/Vioxx Litigation: Possibly a Watershed Event for Drug Manufacturers?

On August 19, a Texas jury opened what may be an entirely new chapter in pharmaceutical litigation. In the first civil trial against Merck & Co Inc (Merck) relating to the painkiller Vioxx (Ernst et al v Merck & Co Inc), the jury found Merck to have been negligent in designing and marketing the drug and that its negligence was the proximate cause of Ernst's death in 2001. Some commentators expressed surprise that the jury had been able to find a direct causal link between the use of Vioxx by Ernst and his death. And Merck has indicated that in its appeal of the verdict that finding of causality will form an important ground of appeal. However, beyond the particular facts of the Ernst case, what may be of greater strategic significance for Merck and other drug manufacturers was the jury's view of evidence that Merck, in its marketing of Vioxx, was less than completely forthcoming about all possible side effects of the drug. The relative freedom enjoyed by US drug manufacturers to market and to advertise their products directly to consumers – seen as an evident boon to increased sales – turns out to have a darker downside potential. In the relatively litigious atmosphere prevailing in the US, any missteps in marketing and advertising to consumers could result in enormous losses. Manufacturers may be obliged to react by giving broader disclosure and by more reliance on doctors and pharmacists to perform their role as "learned intermediaries". For one of the first post-verdict articles, from The New York Times, visit: http://makeashorterlink.com/?T1C8524BB For the global implications of the US litigation, see an article in The International Herald Tribune at: http://makeashorterlink.com/?K2E834BB For an Associated Press article on Merck's latest statements on the Vioxx litigation, see: http://www.law.com/jsp/article.jsp?id=1125047111286 Summary by: The Editor