Libertarian medical school blogger “Frommedskool” has been critical of the Vioxx litigation (regularly citing to our coverage at Point of Law). An April 2006 post about the Cona/McDarby case, however, appears to have generated a December 2007 comment from someone calling himself Mark Lanier, the plaintiffs’ attorney in the case:
Third, there was a huge amount of info Merck had that it never gave the FDA, there were smoking gun memos and emails, and there was huge harassment of the medical community done by Merck. For example, Merck did a full meta-analysis of placebo trial that showed a statistically significant increase in heart attacks, but Merck excised that from the report given the FDA. Even Merck’s head admtted they should have given the analysis to the FDA.
(Point of Law discussed the so-called withholding of the meta-analysis back in 2006. It wasn’t all that.) Fascinatingly, this comment immediately provokes comments from another lurker (just two hours later?!) claiming to be a plaintiff, reasonably asking why, if the evidence was so good, Lanier was agreeing to settle 47,000 plaintiffs’ cases for under $5 billion, essentially a nuisance settlement given that victorious plaintiffs were being awarded in the millions and tens of millions.
There are two possibilities: Mark Lanier supports the settlement because he’s foolish and is leaving tens of billions of dollars on the table, there for the taking with just another few years of work. Or Mark Lanier supports the settlement because he knows the smoking gun is not a smoking gun, and that his Vioxx cases are worthless if fully litigated. And I sure don’t think Mark Lanier is stupid.
Better to take down $4.8 billion in an extortionate settlement than zero when all of your trial victories are thrown out on appeal because you didn’t follow the rules of evidence and the trial judge didn’t follow the law. (The punitive damages award in the New Jersey case violates Supreme Court precedent in Buckman, for example.) Better for the attorneys, that is, who take home nearly two billion: the rest of us suffer from higher drug prices, reduced medical research, and less effective health-care. I’ve been criticized for using the phrase “legalized extortion,” but what do you call it when a batch of trial attorneys says “Lovely business you have here developing life-saving drugs. It’d be a real shame if you’d have to spend $8 billion litigating tens of thousands of meritless cases”?
If Mark Lanier is really commenting on blogs (and we don’t know that he is—the comment from the purported attorney and the purported plaintiff could both be hoaxes), we’d love an answer to the curious question how it benefited his plaintiff for Lanier to wait until June 2006 to move to enter judgment on an August 2005 verdict in the Ernst case.