(here’s the From the Editor column from my magazine this month)
Sometimes, writing this column requires compulsive news-trawling, and my paranoid-detective method of reading people’s quotes. It can be a painstaking process, involving market and biographical research, trend analysis, and interpretations of government health statistics. And sometimes there’s a Vioxx trial, in which case this column pretty much just writes itself.
Recently, Merck won a federal Vioxx suit in New Orleans. The plaintiff, Robert Smith, took Vioxx for four months and suffered a heart attack. Or we could say that Mr. Smith was obese, had high blood pressure and atherosclerosis, took Vioxx for four months, and suffered a heart attack after shoveling snow for nearly an hour. After the verdict, Merck’s lead lawyer on the trial, Philip Beck, commented, “Unfortunately, Mr. Smith would have suffered a heart attack whether he was taking Vioxx or not.” After a few hours of deliberation, the jury agreed with Mr. Beck.
But that’s not the part of this trial that so lends itself to my mean-spirited but occasionally entertaining tirades. No, that honor is reserved for Mr. Smith’s lawyer, Christopher Seeger, who is the plaintiffs’ co-lead counsel for federal Vioxx suits. According to the Reuters report for the trial verdict, Mr. Seeger didn’t exactly put his heart into this one:
“This was a defense pick. . . . It was an impossible case to win going in,” said Chris Seeger, . . . referring to the process of selecting which lawsuits go to trial.
He said Merck could have settled the suit for far less than the $10 million to $15 million it cost them to take it to court, but the company’s “scorched earth strategy” leaves no room for such calculations.
Got that? Provided his definition of ‘impossible’ is the same as mine, it would seem that Mr. Seeger, who co-represents 39 law firms across the country in federal Vioxx suits, pursued a case that he knew he had no chance of winning. From that second quoted paragraph, I infer that he pushed this ‘impossible case to win’ because he wanted to get paid off by Merck to make Mr. Smith go away. A shakedown like this would embarrass the mafia, but it seems that Mr. Seeger and the 39 law firms figure that enough of these $10–$15 million price tags for victories (could it really have cost Merck that much?) will lead Merck to start settling, which will bring them contingency fees without the risk of going to trial. Merck, on the other hand, seems to have the mindset that forcing the Contingency Corps to walk away with empty pockets will cause the ‘impossible cases’ to go away on their own. And that might be the biggest tort reform of all.
While I think there is a benefit that comes from trial lawyers’ discovery processes, I have to wonder about the ethics of a person who told Robert Smith, “You may be entitled to compensation from Merck!” Scorched earth, indeed.
Gil Roth
Editor