When her husband died of a heart attack in 2001 after taking the painkiller Vioxx, Carol Ernst sued the pharmaceutical manufacturer, Merck & Company. In 2005, a Texas jury awarded her $253.5 million after concluding that Vioxx had caused Mr. Ernst’s death. In 2008, a Texas appeals court reversed Mrs. Ernst’s victory. The court concluded that there was no evidence that Vioxx had in fact caused the death of Mr. Ernst55 and, as a result, Mrs. Ernst has been left with no compensation whatsoever for her husband’s death.
According to news reports, Merck has taken an aggressive stance on lawsuits against it and spent more than $1 billion on legal fees to date.56 Merck has observed that the plaintiffs are required to prove that Vioxx caused the heart attack in question. Given that heart attacks are the most common cause of death in the United States, Merck would have faced “an essentially unlimited pool of plaintiffs” without taking such a hard line, according to an American law professor.57
In 2007, a lawyer representing Mrs. Ernst stated to the New York Times that Merck should be amenable to settling at least some of the cases brought against it. He claimed that “Merck’s goal is to manipulate the legal system to deprive justice to tens of thousands of people . . . . Justice delayed is justice denied.”58 Merck has taken steps to resolve some of the cases brought against it however. In 2007, it entered into a $4.85 billion agreement, the goal of which is to bring to a conclusion a majority of the remaining Vioxx law suits.59 According to press accounts, more than 44,000 plaintiffs involved in the most serious claims have enrolled in the proposed settlement. Do you agree with Merck’s approach to the lawsuits that have been brought against it? What happens to people who want to sue Merck but cannot afford a lawyer?