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"Legal Strategy for Vioxx to Test Merck"

In military tactics, "scorched earth" is the term used to describe the act of burning crops to deny the enemy food. According to the Washington Post, it's also an apt term to describe a corporation that, believing it's unjustly accused of acting negligently, has decided to defend itself in court. Other than the blind adoption of the plaintiffs' bar metaphoric characterization of Merck's insistence on defending itself rather than turning over the keys to the company to trial lawyers, the Post has a good article on the challenges facing Merck over the next few months, and the thought-processes behind tactical decisions. (Brooke Masters, Jan. 27).

Meanwhile, in Garza, the plaintiffs surprised nobody by dropping from the case two doctors who were sued as co-defendants, one of whom never even gave the decedent Vioxx. Press coverage acknowledges that the doctors were put through three years of legal trouble only for the forum-shopping purpose of keeping the case in Rio Grande City state court, a judicial hellhole. (Brittney Booth, "Doctors dropped from Vioxx lawsuit", The Monitor, Jan. 27; AP/Newsday, Jan. 26). More on forum-shopping and Vioxx: Oct. 15; Mar. 28; Overlawyered Jul. 11.

And, oh, by the way, Leonel Garza, Sr.? 71 years old, and "had a 28-year history of heart disease, including a heart attack, quadruple bypass surgery and two heart catherizations. Still, he did not heed his doctors´┐Ż warnings to exercise and quit smoking." And he had stopped taking Vioxx weeks before he died, but the widow has changed her testimony to claim that medical records are wrong, he received a one-month sample of Vioxx, and that the family threw out the physical evidence. (Brittney Booth, "Plaintiff: Merck & Co. brushed off Vioxx perils", The Monitor, Jan. 26).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.