Two weeks after Alex Berenson's hit piece on the status of the Vioxx litigation, the New York Times hasn't run my letter, so we might as well see an annotated version of it here:

To the Editor,

Alex Berenson's August 21 article noting that Carol Ernst has not yet received any money two years after her $253 million Vioxx verdict against Merck distorts the story by omitting a critical fact. Ernst's own attorney, Mark Lanier, is responsible for most of the delay by refusing to ask the trial court to enter judgment until June 2006. Because of this, Merck was prevented from appealing until September 2006. Berenson misses the real story by failing to ask Lanier why he waited so long: the most rational explanation is that Lanier expects his victory to be reversed on appeal because of the numerous irregularities that led to the verdict (including the admission of conclusory expert evidence in direct contradiction of Texas Supreme Court precedent barring such junk science), and wanted for tactical reasons in other cases to delay having his first win thrown out in the hopes that it would increase settlement pressure on Merck—a goal furthered by the article's insinuation that Merck is doing something wrong by defending itself. Berenson is further incorrect when he implies that only twenty cases have been decided: courts have dismissed with prejudice over a thousand meritless cases against Merck, often because the plaintiff was not even taking Vioxx yet sought to recover from Merck.