Yankee’s pitcher Roger Clemens told “60 Minutes” last night that he was “eating Vioxx like it was Skittles.” And Theodore Frank, a fellow at the American Enterprise Institute, proposed (tongue in cheek, mind you) that the anti-inflammatory drug may have done more for Clemens’ pitching arm than most would like to admit. After all, when Merck voluntarily withdrew the drug in 2004, Clemens’ pitching started to slide.
But, as Frank pointed out at an AEI panel discussion today on the implications of the Vioxx settlement, just because Clemens’ pitching stats fell after he stopped taking the drug doesn’t mean that the drug helped his fast ball. Similarly, just because some people who took Vioxx had heart attacks, doesn’t mean that the drug caused them, necessarily.
In November of last year, Merck & Co. negotiated a settlement proposal with plaintiffs attorneys that, if 85 percent of the claimants agree to it, will give $4.85 billion to the thousands of claimants and their lawyers. But as the AEI panel showed, opinions vary greatly on the settlement.
Mark Herrmann, a defense attorney with Jones Day in Chicago, said the settlement “made sense. It was logical, and it, in fact, was predictable from the start.”
But George Cohen, a law professor at the University of Virginia, had some ethical concerns with the proposed settlement. The terms of the agreement could stand in the way of lawyers giving their clients adequate advice. “The temptation will be, I fear, that lawyers will want to recommend this to people even if it’s not in their best interest,” says Cohen.
Andy Birchfield, an attorney at Beasley Allen and co-lead counsel on the Plaintiffs’ Steering Committee for the federal Vioxx litigation, countered that the settlement had been designed so that plaintiffs attorneys couldn’t “game the system” or cherry pick the best cases to leave out of the settlement.
Frank said that the settlement, in the end, took money away from innocent shareholders and investors—"the widows and orphans who own Merck stock."