Vioxx Litigation
WCIU News
December 13, 2005
Reporter 1: It is likely that Merck will face another go around in court. The first federal trial of the arthritis drug, Vioxx, has ended in a mistrial after a jury could not reach a verdict. Merck still faces thousands of lawsuits, two have ended in verdicts. One with a Texas jury ordering Merck to pay $253 million. The company plans on appealing that case. The second found Merck was not on the hook for a mans heart attack after taking Vioxx. The mistrial in federal court this week comes after the New England Journal of Medicine claimed Merck left out negative results in the study about Vioxx. The drug was pulled from the market more than a year ago. Since then, Merck stock is down 38%.
Reporter 2: Well Angie, the judge presiding over this federal mistrial case has signaled somewhat of a willingness to talk about a global settlement with the thousands of cases pending against Merck and against Vioxx. Kenneth Moll is certainly involved with this as an interested party, an attorney with Kenneth B. Moll and Associates, and the person who filed the first lawsuit against Merck and against Vioxx several years ago. Ken welcome back to the program.
Ken Moll: Thank you.
Reporter 2: First of all, your reaction to mistrial, any surprises?
Ken Moll: Well, I think it's a surprise from both sides that it did end up a hung jury but I think it's a huge victory for the plaintiffs and a huge defeat for Merck.
Reporter 2: Well now obviously you're fighting Merck but why do you think it's a defeat for the company?
Ken Moll: Merck has always said in light of the Vigor Study…
Reporter 2: We should point out that the Vigor Study is the New England Journal of Medicine Study that last week the journal said Merck did not provide all of the clinical data.
Ken Moll: That's correct, they left three heart attacks out which would have shown six times as much risk of heart attack with using Vioxx as opposed to five times as much as the study showed.
Reporter 2: The Company does say however that it gave the data to The Journal that was available at the time of publication and then a few months later gave all the data to The Food and Drug Administration.
Ken Moll: Well, they gave it to The Food and Drug Administration before the article was posted. I do not believe that The New England Journal had the information before they published the article.
Reporter 2: Regardless, back to the original point, why do you believe this hung jury is a defeat to the company?
Ken Moll: Merck has been touting that they are not going to lose a case where a user has used Vioxx under 18 months. This is a case for a person who used Vioxx for less than one month and here you have some jury members clearly saying 'I feel that Vioxx was at fault'. So, Merck is not going to win every case and that's what this shows.
Reporter 2: On the other hand though, couldn't you argue from the company's perspective, that obviously there were jurors who said 'Listen, the company is not at fault in this case'.
Ken Moll: Well, we have been standing forward saying that we are not going to win every case. We are clearly going to lose some and win some but if you add up all the wins it's going to surpass any settlement that could result…
Reporter 2: Let's talk about that Ken, because obviously you have plenty of cases pending, where do you begin trying to put a price tag on a global settlement?
Ken Moll: I think it's very easy. I think you need to put together a grid; we have done it in prior settlements whether its Baycol, Breast Implant Litigation, Tobacco Litigation or Fen-phen is a clear example. We had thousands of claims there as you do here…
Reporter: Fen-phen was three billion dollars; do you think this would be north of that?
Ken Moll: Absolutely.
Reporter 2: Ok, fair enough, your cases are still pending we should point out, is that correct?
Ken Moll: That's correct.
Reporter 2: Alright, thank you for joining us, appreciate the insights and opinion.
Ken Moll: Anytime.
Reporter 2: Kenneth Moll with Kenneth B. Moll and Associates.