Judge Higbee's courtroom isn't as bad as a south Texas or Alabama state court where the judges are directly elected by the plaintiffs' bar, but it's hardly Merck-friendly. She is a former plaintiff's attorney who has repeatedly made rulings unfavorable to Merck, including certifying a groundless fifty-state class action. Many of the cases involve out-of-state plaintiffs whose attorneys deliberately chose to file in New Jersey to guarantee that their case wouldn't be removed to federal court by Merck. So why do plaintiffs' attorneys keep referring to the New Jersey cases as being fought in "Merck's home court"? The answer is to make Merck's liability seem worse than it is, which will help (1) recruit plaintiffs and (2) create financial market pressure on Merck to settle and quantify its uncertain liability (though we know from Wyeth and fen-phen that settling defensible cases at an early stage only makes liability worse in the long run). Occasionally, you'll see the press or a stock analyst buy the hype, but you, gentle reader, now know better.
Center for Legal Policy at the