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Vioxx Case Shows Civil Justice System Is Only Check on Corporations That Put Sales Before Safety

[Column 357, October 3, 2005] | Archived Columns

By Ken Suggs*

Since a Texas jury found the makers of the drug Vioxx liable for the death of Robert Ernst, Americans have been hearing a lot about the size of the punitive damage award.

But here's another number to consider: as many as 55,000. That's how many Americans were killed by Vioxx according to David Graham, a scientist at the U.S. Food and Drug Administration (FDA). As many as 140,000 had heart attacks or strokes.

Those Americans didn't have to die. Internal corporate documents revealed in the Vioxx trial show that Merck was aware of the cardiac risks of Vioxx as early as 1997. The company's top scientist stated in March 2000 that a clinical trial of Vioxx confirmed that the drug had heart risks. In fact, this clinical trial showed that the drug caused five times as many heart attacks as another pain relief drug.

Merck executives even ignored an FDA request to add a warning label to Vioxx for four months, because they calculated the drug company could make an extra $229 million by waiting.

Merck and its CEO had a legal responsibility to inform physicians of the risks of their product, so those physicians could help patients make informed decisions about their health care.

Instead, Merck executives produced a game called "Dodgeball" to train their drug reps how to "dodge" questions from doctors about the cardiac dangers of Vioxx. Doctors who weren't fooled by Merck's deceptive marketing of Vioxx were targeted by the company. Merck worked to discredit these doctors and even threatened a Stanford University scientist who questioned the safety of the drug.

Merck executives knew about the danger of Vioxx, they trained their sales reps to cover it up, and then they spent more than $500 million marketing the drug to an unsuspecting public.

After a jury of ordinary American men and women heard all the facts and examined all the evidence in a month-long trial, they found Merck liable for the death of Carol Ernst's husband. Other lawsuits are moving forward, including a suit by the Republican Attorney General of Texas, who is suing Merck for downplaying the dangers of Vioxx and defrauding state taxpayers.

The headline-grabbing $229 million punitive damage award decided on by the jury was not chosen at random, but represented the exact extra amount of money Merck calculated it would make by delaying changes to the drug's warning label.

Like all Americans, I'm sure the members of this jury rely on prescription drugs to keep them healthy and help make them well when they are ill. They just want to know that our families' lives matter as much to the corporate executives marketing these drugs as their corporate profits.

As Marsha Robbins, the forewoman of the jury, said, "We expect accountability, we expect them to be open with us, we expect them to be honest with us."

"Stop doing the minimum to put a drug on the market," juror Derrick Chizer said. "Go out there and do your very best. ... Merck makes a lot of medicines. They're staking our lives. Be responsible."
Despite the clear will of the jury, Texas law that replaces the judgment of jurors with that of politicians automatically reduced the punitive damages by 99% to $1.6 million. That's how much Merck made in Vioxx sales every 6 hours and 40 minutes the drug was on the market.

Compare $1.6 million to the more than $11 billion in Vioxx sales Merck made between 1999 and 2004, and the $37.8 million that Merck's CEO made in 2004 from a salary, bonus, and stock options that he cashed in.

Vioxx was supposedly a blockbuster pain killer. It turned out to be a plain killer. And the Vioxx verdict is another illustration of how, for ordinary Americans, the civil justice system is the last check—and sometimes the only check—against corporations that put profits before the health and safety of their own customers.