Hostname: page-component-745bb68f8f-cphqk Total loading time: 0 Render date: 2025-01-12T01:53:35.241Z Has data issue: false hasContentIssue false
  • English
  • Français

Merck and the Vioxx Decision: Playing by the Changing Rules of the Chemical Exposure Game

Published online by Cambridge University Press:  01 January 2021

Jacqueline G. Cohen
Get access Rights & Permissions [Opens in a new window]

Extract

For years, legal scholars and environmental activists have maintained that traditional tort proof requirements create insurmountable obstacles to recovery for most plaintiffs in chemical exposure cases, be they pharmaceutical suits or environmental toxic tort cases. Generally, tort law requires a plaintiff to show that the defendant owed a duty, that the defendant breached that duty, and that the breach of that duty caused the injury that is the subject of the suit. In some cases those requirements can be relaxed, as for example, when an injury is of a type that does not occur except as a result of negligence (under the doctrine of res ipsa loquitor).

Type
Recent Developments in Health Law
Information
Journal of Law, Medicine & Ethics , Volume 33 , Issue 4 , Winter 2005 , pp. 866 - 869
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

The proof required to establish liability for physical harm is outlined in Section 6 of the Restatement (Third) of Torts, a national compilation of trends in tort decisions.Google Scholar
The Doctrine of Res Ipsa Loquitor generally applies when the occurrence of an injury is enough to allow a reasonable jury inference of both negligence and causation. Rest (2d) of Torts §328(d), on the origins of the doctrine see especially comment (a).Google Scholar
Pagano, S., “Texas Jury Awards $253 Million in Vioxx Suit” Products Liability 33, no 34 (2005) 830–831.Google Scholar
Ginsburg, T., “Merck Touts Unusual Line of Defense,” Philadelphia Inquirer, October 2, 2005: E1.Google Scholar
Donald, M., “How a Small-Firm Attorney Took on Merck and Won,” Texas Lawyer, August 30, 2005: 1.Google Scholar
Donald, M., “Lawyers in First Vioxx Suit Battle Over Causation,” Texas Lawyer, July 11, 2005: 1.Google Scholar
Pagano, , supra note 3.Google Scholar
Donald, , supra note 5.Google Scholar
This limitation was created by Texas House Bill 4, a medical malpractice reform bill passed in 2003.Google Scholar
Ibid.Google Scholar
Donald, , supra note 6.Google Scholar
Ibid.Google Scholar
As quoted in Donald, , supra note 6.Google Scholar
Texas v. Merck & Co., Inc. 385 F.Supp.2d 604 (2005).Google Scholar
Donald, , supra note 6.Google Scholar
These specific proof requirements are described in Section 28, comment (c) of Restatement (Third) of Torts, the National Precedent compilation referred to in supra note 1.Google Scholar
Berger, M. A., “Eliminating General Causation,” Columbia Law Review 97 (1997): 2117–2152, at 2122.Google Scholar
Wagner, W. E., “Choosing Ignorance in the Manufacture of Toxic Products,” Cornell Law Review 82 (1997): 773–855, at 774.Google Scholar
Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. at 2796.Google Scholar
Justice Blackmun addresses this concern in the Daubert decision, suggesting that cross examination and introduction of contrary evidence by the other side will prevent erroneous scientific testimony just as they do for other kinds of testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct at 2797.Google Scholar
Black, B., Ayala, F. and Saffran-Brinks, C., “Science and the Law in the Wake of Daubert,” Texas Law Review 72 (1994): 715–802, at 762.Google Scholar
Where statistical analysis is being performed and a mean and standard deviation are calculated, the 95% confidence interval can be constructed as a range from the mean minus the standard deviation to the mean plus the standard deviation. This means that there is 95% confidence that a value will be in that range.Google Scholar
The general civil liability standard is described in Section 28, comment (b) of the Restatement (Third) of Torts, the compilation described supra, note 1. Different measures are used for different types of scientific studies (such as relative risk for epidemiological studies), and different states may apply different standards.Google Scholar
Berger, , supra note 17, at 2122.Google Scholar
Wagner, , supra note 18, at 774.Google Scholar
Berger, , supra note 17, at 2117.Google Scholar
Berger, , supra note 17 and Wagner, , supra note 18.Google Scholar
As quoted in Donald, , supra note 6.Google Scholar
Ibid.Google Scholar
Ibid.Google Scholar
Donald, , supra note 5.Google Scholar
Ibid.Google Scholar
Pagano, , supra note 3.Google Scholar
As quoted in Berenson, A., “Jury Calls Merck Liable in Death of Man on Vioxx,” New York Times, August 20, 2005, at A1.Google Scholar
Estimate from Friedman, Billings, Ramsey & Co. reported in Smith, A., “Merck's Vioxx Bill Could Hit $50 Billion” CNN Money Online Magazine, August 22, 2005, accessible at <http://money.cnn.com/2005/08/22/news/fortune500/merck/index.htm>..' href=https://scholar.google.com/scholar?q=Estimate+from+Friedman,+Billings,+Ramsey+&+Co.+reported+in+Smith,+A.,+“Merck's+Vioxx+Bill+Could+Hit+$50+Billion”+CNN+Money+Online+Magazine,+August+22,+2005,+accessible+at+.>Google Scholar
Estimate by analyst Chris Shibutani, CNN Money, supra note 34.Google Scholar
As reported in Pagano, supra note 3.Google Scholar
Ibid.Google Scholar
According to reports from two jurors, reported in Silverman, E., May, J., “Vioxx Jurors Cashing in as Trial Advisors” The Newark Star Ledger, October 23, 2005, at 1.Google Scholar
Ibid.Google Scholar
Ginsburg, , supra note 4.Google Scholar
Ibid.Google Scholar
Ibid.Google Scholar