Merck Fantasyland

It's amazing that Merck doesn't quite realize how bad the Vioxx law suit blowback will be. Merck utterly corrupted the scientific review process for the drug, and so a bad verdict in court shouldn't have come as a surprise, but they seem to think they can just talk their way out of the problem. That's the hubris comes from out-of-control corporate power!

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.

...They showed Dr. Scolnick later referring to scientists at the Food and Drug Administration as untrustworthy. And they revealed that Merck had stridently resisted the F.D.A.'s efforts to add warnings to Vioxx's label, and that it eventually complied only in ways that the Texas jury found unacceptably obscure. ("You had to dig three levels to see it," one juror, Lorraine Blas, said of the potential heart problems described in one version of the drug's labeling material.)

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 interviews, several jurors said they had intended the verdict, which included $229 million in punitive damages, not to reward Mrs. Ernst but to punish Merck for its actions. Derrick Chizer, one of the jurors, said that the jury wanted to send Merck and the drug industry a message: "Stop doing the minimum to put your drug on the market." Other jurors made similar comments.

The $229 million punitive damages figure was not picked at random, but referred to a 2001 Merck estimate of additional profit the company might make if it could delay an F.D.A. warning on Vioxx's heart risk. Mr. Lanier mentioned that monetary figure in his closing argument.

Dr. Jerry Avorn, a professor at Harvard Medical School and frequent critic of the drug industry, said he was not surprised that the jury responded as vehemently as it did.

"Even as a seasoned observer of drug company affairs, I have been surprised at the way Merck handled the emerging evidence about cardiac risk with this drug," Dr. Avorn said. "There was an element of the Watergate tapes that I was reminded of: many people had been critical of Nixon for a long time, but even Nixon's critics did not expect to find the documentation of their worst fears made so clearly evident."

... But many provocative documents, such as the e-mail messages in which Merck scientists discussed their early concerns about Vioxx, are clearly relevant to the litigation and will be allowed everywhere. And unless Merck can quickly figure out how to explain those documents to juries, it will soon face an enormous problem. Even Merck, with $22 billion in sales and $6 billion in profits last year, can withstand only so many $250 million verdicts before it is forced to rethink its plan to fight every Vioxx lawsuit.