January 23, 2007

On February 26, 2007, Angela McCool's trial against Merck was scheduled to start in plaintiff-friendly Philadelphia state court. (McCool had used fraudulent joinder to keep the case in state court by also suing some Merck employees who lived in Pennsylvania.) McCool had blamed the fatal heart attack of her husband (who had hypertension, high cholesterol and obesity) on Vioxx, but apparently thought better of bringing the case, which was voluntarily dismissed with prejudice.

Task for a creative investigative reporter: I really wonder whether the Plaintiffs' Steering Committee (or individual trial lawyers with large inventories of Vioxx cases) are buying off plaintiffs with weak cases so that Merck doesn't have a pile of victories in the early going, something that has effectively shut down other pharmaceutical mass tort litigation that settled for nuisance sums. What possible reason could a plaintiff have to agree to a lawyer's request to settle for zero when there's a better-than-lottery-ticket chance at fame and fortune before a jury? There seem to be a surprising number of voluntary dismissals with prejudice, and there has yet to be a Vioxx plaintiffs' victory of any significance that isn't severely tainted with reversible error on fundamental matters such as expert evidence.