Photo of Bexis

On the one hand, we’re quick like a bunny.

On the very days they were decided, we posted links to the Texas appellate decisions in Merck v. Garza, No. 04-07-00234, slip op. (Tex. App. May 14, 2008), and Merck v. Ernst, No. 14-06-00835, slip op. (Tex. App. May 29, 2008).

On the other hand, we’re slow as a snail.

We haven’t yet posted our analysis of either case.

Don’t blame Bexis. As you know, his firm is involved in the Vioxx defense, so he doesn’t participate in our posts on those cases — including this post.

Blame Herrmann. (Of course, to do that, you’ll have to step in at the end of a long line. Take a number.)

Anyway, we posted on McDarby yesterday because that was both new news and a case that we saw as having relatively broad implications. The holdings on (1) the unavailability of punitive damages for product liability cases in New Jersey, and (2) the displacement of the Consumer Fraud Act by the Product Liability Act are important and will affect a fair number of pending and future cases.

By contrast, Garza and Ernst strike us as less sweeping.

Garza and Ernst are both specific causation decisions. The opinions hold that, on the facts presented and expert testimony adduced, plaintiffs offered insufficient evidence to prove that their decedents suffered their respective heart attacks as a result of having ingested Vioxx.

That’s big news for the particular plaintiffs involved in the cases, of course. Garza’s estate had been awarded a $32 million verdict (reduced to a $7.75 million judgment) in the trial court.

And the Ernst estate made Garza look like a piker. The jury awarded Ernst’s estate a $253 million verdict, which was reduced to a $26 million judgment. After the decisions on appeal, plaintiffs will take nothing.

As we said, that’s big news to the plaintiffs.

It’s medium news to Merck. Merck has already settled the vast bulk of the Vioxx cases (excluding Garza, Ernst, and certain others) for $4.85 billion.

If Merck had lost the Garza and Ernst appeals, that would have added another $50 million to the total, bringing the price of settlement to $4.9 billion. In the scheme of things, that’s rounding error. (Where’s Senator Everett Dirksen when you need him? “A billion here, a billion there, pretty soon it adds up to real money.”)

We won’t scoff at saving $50 million. We’re calling those decisions “medium” news to Merck.

(On the other hand, we will scoff at the folks who suggest that those decisions, coupled with McDarby, show that Merck overpaid when it settled the Vioxx claims. Balderdash! You settle cases on the day you settle them, with the uncertainty that exists on that day. You can’t second-guess decisions based on hindsight. Some time next year, we’re likely to learn an awful lot about the value of pharmaceutical product liability cases on the day the Supreme Court decides Wyeth v. Levine. If that case comes down in favor of industry, does that mean that Merck overpaid in Vioxx? We think not. If Levine comes down against industry, did Merck underpay? Again, we think not. Everyone’s crystal ball is cloudy, and you judge a settlement only in light of the uncertainty that exists at the time the deal is struck.)

Anyway, we’re deeming Garza and Ernst to be “little news” to the world at large. Both cases speak only to the proof presented at particular trials in the context of particular plaintiffs and a particular drug. Neither case announced broad new principles of law that will stand as important precedent for the future.

Should Merck be pleased with the Texas twins of Garza and Ernst? Of course.

Will others be talking about those cases in years to come?

Maybe historians of the Vioxx controversy, but not the world at large.

If you want to pick the big news in our industry from among the three recent Vioxx decisions, go with McDarby. That one, unlike the Texas twins, will have a lasting impact.