Milking Merck: When Punishment Is the Crime

The story from Angleton, Texas, is — well, you know by now: Merck & Co. killed Robert C. Ernst!

In fact, there’s a far bigger story: "Runaway Texas jury consigns untold thousands to pain, suffering and, for all anyone now knows, death." Not the most economical headline you ever read but true — deadly true.

The Vioxx decision last week is about as malignant a piece of legal mischief as we know of. Hardly for the first time, a jury got suckered by a semi-charismatic plaintiffs’ lawyer — who hired a "jury psychologist" to help gauge his performances, which included quoting the Bible with impressive enthusiasm.

Mark Lanier had the jurors eating out of his hand. Twenty-four million big ones the jury assigned Robert Ernst’s widow, with another $229 million thrown in for punitive damages. "Punitive" means tailored as punishment. Merck sagged beneath the blows of the bullwhip. Its stock fell almost 8 percent.

Analysts took to questioning whether — even after this particular judgment is cut 90 percent in accordance with Texas law — Merck can survive the estimated thousands of lawsuits it still faces. This is because, though the Angleton jury seemed nonchalant at the reality of the thing, economics says a company must make a profit.

Milk Merck hard enough, and you’ve got something more than thousands of lost jobs; you’ve got a shutdown of medical research — at Merck, of course; but also at other pharmaceutical companies understandably distracted by the prospect of going broke because some jury or other points the finger at them. No one can do business this way, least of all perhaps the pharmaceuticals, whose lead time between lab research and sales is, potentially, decades.

I got on Merck’s website ( just to see what else besides Vioxx — which Merck, perhaps imprudently, withdrew from the market 11 months ago in response to tests that raised important safety questions — it’s working on. You can take all this with a handful of salt if you don’t trust pharmaceutical companies. And yet how offhanded really is it possible to be concerning research projects such as:

  • The accelerated filing of "two new vaccines, which are intended to help prevent disease from occurring in the first place."
  • "A new kind of treatment for Type 2 diabetes."
  • "A new vaccine for treating shingles."
  • "A new childhood vaccine that adds a chicken pox component to the existing measles, mumps, rubella vaccine … "
  • "A Phase II cancer compound for treating cutaneous T-cell lymphoma," now in clinical trials.
  • A new initiative aimed at preventing or treating Severe Acute Respiratory Syndrome (SARS).

Care to argue that none of this is of consequence; that the lawyers can safely put Merck out of business, as we all sink into untroubled sleep?

"You’ll be the first jury in America to say, ‘Time out, Merck,’" the creepy Mr. Lanier exhorted the Vioxx jury. What a distinction: Time out for medical research and the once ongoing war against disease and pain! 

But did Merck do it? Did the pharmaceutical giant kill Richard Ernst by inducing him to want Vioxx? His autopsy revealed not a heart attack but an irregular heartbeat. Or, so the coroner said before Lanier flew her back from the Middle East and induced a change of outlook. She became mysteriously sure the cause of death had been heart attack.

The clinical tests that prompted Merck to pull Vioxx from the market showed risk from heart attack increasing after 18 months of treatment. But Ernst had taken the drug only eight months — a circumstance that failed to agitate the jury.

Appeals courts may yet administer a partial cure for this awful affliction. One thing we can be sure of in the meantime: The quest for perfection — and for punishment of happenstance, coincidence, and anything else available — has no resting place in today’s law courts. Just how could it rest, driven as it is by the same motive the plaintiffs’ bar routinely ascribes to American business — the base love of filthy lucre.