Did Merck settle too soon?

Yesterday, we reported that two appeals courts--in Texas and New Jersey--overturned multimillion-dollar verdicts against Merck in Vioxx cases. The Jersey court's reasoning: A state product liability law was pre-empted by federal law.

Wait a minute: Isn't pre-emption [1] that big legal debate the Supreme Court intends to rule on [2] later this year? The one that says FDA approval, being federal, should shield drugmakers from state liability? Yes and yes. If the Supremes decide pre-emption is the way to go, patients will find it difficult to sue drugmakers at all, and the companies will have a stronger position in settlement negotiations.

So, the Wall Street Journal Health Blog asks, did Merck jump the gun when it offered the big $4.85 billion settlement last year [3]? At the time, it seemed like a good deal for the company. But in light of the overturned verdicts, and the possibililty of pre-emption, it seems Merck might have been able to get off even more lightly if it had waited a bit longer.

- read the post [4] at the Health Blog

Related Articles:
Preemption debate heats up [1]
Supremes vote 4-4 in pre-emption suit [2]
Supremes leaning toward pre-emption? [5]
Merck settling Vioxx claims for $4.85B [3]