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Personal injury? Access to justice is not an exact or precise science.

Byline: By Denis Whaley

The massive damages handed out by a Texas jury to a wife whose husband died after taking the painkiller Vioxx has opened the flood gates for similar claims around the world. But Denis Whaley, a partner in Anderson Eden solicitors, which has represented Welsh claimants in other high-profile court cases, said the UK Vioxx victims may not automatically be entitled to compensation

IF you have suffered personal injury as a result of the negligence of another there is no guarantee that you will be compensated in full or at all.

Access to justice is not an exact or precise science. In fact, if you have been following the shenanigans of Vioxx manufacturer, the pharmaceutical giants Merck recently, you could be forgiven for thinking it was all a game.

In September 2004 Merck announced the recall of its arthritis and pain medication Vioxx because a study showed an increased risk of heart attack and stroke.

The study showed that patients regularly taking Vioxx faced twice the risk of a heart attack compared with patients not taking Vioxx.

Further, Vioxx users with a history of cardiovascular problems were at a five-fold increased risk.

Several lawsuits have been commenced in the United States on behalf of patients who have suffered severe injuries from heart attacks or strokes after having taken Vioxx for an extended period.

The lawsuits allege that Merck falsely promoted the safety of Vioxx and failed to disclose the full range of the drug's dangerous side effects.

Reports in medical journals estimate that as many as 20 million people worldwide have taken the drug including about 400,000 in the UK.

It has been suggested that Vioxx may have led to more than 27,000 heart attacks and sudden cardiac deaths before it was pulled from the market.

In November 2004 a study published in The Lancet concluded that Merck and US federal officials ought to have withdrawn the painkiller from the market as early as 2000 because studies had already shown the increased risk of heart attacks among users.

More and more injured consumers are looking to US courts for their redress because a successful claimant can expect to recover substantially more damages there.

In the UK the courts are reluctant either to make large awards or keep abreast with new causes of action.

It can also be difficult to fund litigation here against defendants with unlimited funds and when it is usual for the loser to pay all of the winner's costs.

In the US, the basis of the contract of retainer between lawyer and client is a contingency agreement whereby the client pays a fixed percentage of the damages recovered, otherwise, nothing is paid and the client is never at risk.

The lawyer funds the costs of the lawsuit from his own pocket.

On Friday, August 19, a Texas jury found Merck liable in the first case that has gone to trial regarding Vioxx-induced injuries.

The total verdict in the Texas case was about $24m in damages to compensate the plaintiff for the loss of her husband.

An additional award of $229m was made for 'punitive' damages, to punish the defendant for misconduct, but under Texas law the punitive damages award is automatically reduced to about $1.6m.

Therefore, if the jury verdict survives appeal, the total award would be about $25.6m.

There are several points to make about this verdict. First, and most important, it shows that a jury of average citizens was satisfied by the evidence that Merck failed to warn of the dangers of Vioxx.

This bodes well for future cases.

However, immediately after the decision, Merck said it would appeal the decision - appeals can take years to resolve and there is no assurance that the decision will be upheld on appeal.

Second, the Texas case took years from filing to get to a jury trial.

Third, each case and each jury are different. The success of one plaintiff does not assure that others will succeed. It is common in all large-scale pharmaceutical cases that some trials are won and some are lost.

The unpredictability of jury trials and the delays of appeals are common reasons for parties to compromise and settle claims.

Immediately after the Texas decision Merck further announced that it still planned 'to fight every case one by one' rather than settle any case.

Nine days later Merck published a significant about-turn by announcing that it is considering settling some of the lawsuits. The company said it will look primarily at a relatively small group of cases that involve patients who took Vioxx for more than 18 months and who had no other risk factors for heart attacks or strokes.
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Copyright 2005 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Features
Publication:Western Mail (Cardiff, Wales)
Geographic Code:1USA
Date:Sep 5, 2005
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