It has been two years since the Merck/Vioxx debacle has unfolded publicly. And to that end, over 45,000 lawsuits have since been brought against the maker of the once ubiquitous painkiller. One notable case, the New York Times reported recently, was on August 19, 2005 when a Texas jury awarded Carol Ernst $253.5 million after concluding that Vioxx was the cause of death of her husband, Robert, in 2001. Since that judgement Merck has filed an appeal and, thanks to Texas laws on punitive damages, the amount has been lessened considerably – to $26.1 million. Mrs. Ernst is still awaiting a higher court ruling on the appeal, and as a result, in the meantime, Merck is not obligated to pay.

Mrs. Ernst and many others are realizing that decisions in their favor do not necessarily translate into money in the bank. Merck has spent over $1 billion in legal fees contesting each case brought against them, in a strategic bet to force plaintiffs to trial and therefore reduce the number of Vioxx lawsuits and, ultimately, their liability. Merck has publicly refused to consider an overall settlement to resolve all of the lawsuits at once.

Dr. Joel Silverfield, a rheumatologist in Tampa, Florida, recounts a story from his practice shortly after the Vioxx withdrawal. “I remember a woman called my office asking for her husbands medical records one month after he had passed away.” Dr. Silverfield said. “We told her that it would cost a fee to pull the records and inquired as to why she wanted them. She said she wanted proof that her husband was taking Vioxx at the time of his death and was considering filing a lawsuit.” Then Dr. Silverfield added with a smile: “so I needed to remind her that her husband was killed in a car accident.”