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A Word from the Defense: Is Defending Vioxx a Recipe for Disaster? Take a Careful Look at Who Is Sounding the Alarm

By Glenn Pogust

The message from our plaintiffs' lawyer colleagues has been steady and direct: “Don't bother defending these cases ' you're going to lose and you're going to lose big. Just pay us all lots of money now and save yourself a lot of pain and agony.” And what other message would they send? Their goal is to reap the highest reward from the least amount of effort. Litigating every case on every level; financing and staffing hundreds of complex trials, and waiting for final appellate review of every verdict is no way to run a mass tort practice ' at least not from the plaintiffs' perspective. Given this author's perspective, it makes sense to examine the options more carefully before deciding that the only way to avoid ruin is to wire massive sums into the trial bar's trust accounts.

The thoughts and observations expressed here do not come from someone with any involvement in the Vioxx litigation, and, therefore, are expressed without any particular familiarity with the facts of those individual cases or the relative strengths and weaknesses of the cases being prepared by both sides. These thoughts and observations do come from someone who has spent the last 25 years as an active participant in many of the large pharmaceutical and medical device cases that have preceded the current mass tort du jour. In every instance, with admittedly varying permutations of victory claims from both sides of the battle, the most effective answer to the onslaught of litigation has been a strong and thorough defense '  not only of the conduct and science story, but also of every individual case. Preparing the defense of these cases is never simple or inexpensive, but comprehensive preparation of every aspect of the litigation is the only effective way to overcome the inherent public prejudice and misconceptions of the pharmaceutical industry that the defendant will face as the cases proceed to trial.

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