The Merck proposed settlement (see Ted's summary) comes, amazingly, just as the Manhattan Institute organized a one-day study session here at George Mason Law School on fee-shifting rules.
Arguably Merck offered to pay out sums it believes it does not owe in substantive law, just because such sums are less than litigation fees it would otherwise have to pay under the "American rule" (which declines to transfer the winner's court and lawyer costs to the losing party). Arguably many of the thousands of pending suits against Merck due to Vioxx would not even have been filed had a "loser pays" rule been in effect. Arguably the four judges administering 90% of Vioxx litigation (in the federal, Texas, California and New Jersey courts) would not have twisted Merck's arm to settle (avoiding a multi-year clogging of their dockets as Merck fought and won suits one-by-one) had a loser pays rule been in effect, since their dockets would not have been so clogged. Arguably Vioxx is the modern Bendectin -- a valuable product removed from the market because of the lack of fee shifting. [Bendectin is apparently still available in Canada, where it is marketed as Diclectin, by the way. No outbreak of birth defects in the great white north...]
Back in August the Wall St. Journal health blog observed that, in a pure repetition of the Bendectin scenario, many people still swear by Vioxx and complain to Merck that nothing else on the market works for them. Not to fear: a skeptic from Consumers Union responds: �A person�s conviction that something is helping them or that only one thing will help them is often erroneous. The impact may be exaggerated.� Gee, might that apply to a person's conviction that a drug is hurting them?