Merck is being lauded for its strategy of aggressively fighting virtually every injury claim. In spite of a $4.85 billion settlement that may only settle only 85% of open claims, Merck is getting pats on the back from Wall Street and kudos for its Churchillian cry to wage war. The question is will Medtronic follow suit in the defibrillator lead class action lawsuit?
If this is the course Medtronic takes, I suspect they will find themselves in the same category as many asbestos manufacturers who took the same path: financial ruin.
Why, then, was Merck arguably successful? Setting aside the insanity of calling a $4.85 billion settlement a success, Merck has been successful at trial because these cases are tough. Heart attacks and strokes with patients on Vioxx are what epidemiologists call confounding by indication, which means that people taking Vioxx, because of their typically more advanced age, are people also at risk for heart attacks independent of the Vioxx. Moreover, the injury itself is the leading cause of death in this country.
While there no question that Merck dropped the ball on patient safety with Vioxx, the question was always whether Vioxx caused the heart attack or stroke with the particular patient. This is the problem for Vioxx plaintiffs. Trust me, if a lawyer has a 25 year-old otherwise healthy client who took Vioxx, that lawyer is not going to be recommending that client join the class action settlement and that case is going to be worth a great deal of money. The problem was that most of the Vioxx plaintiffs were much older people at high risk for heart disease with or without Vioxx.
Causation is going to be much easier in the Medtronic cases for a host of reasons. First, everyone with these leads is injured, at least in the sense of fear that their Medtronic defibrillator will fail because the leads fail to detect an abnormal rhythm or because the leads shock the heart when they shouldn’t. If you have one of these Medtronic defective leads in your chest, you obviously know what I’m talking about. If you do not, think about it for a second. You made the choice to get a defibrillator which shows how concerned you were about abnormal heart rhythms. That is a serious choice to make. Now, for many patients, these wires are imbedded into their tissues with no meaningful way to recall them. How would you feel knowing you have a defibrillator that has wires that may fail to shock your heart when your heart falls out of rhythm or might shock your heart when you do not need a shock? Every juror hearing a Medtronic case is going to appreciate this harm.
Secondly, the liability is virtually established by Medtronic’s own statements about the failure of the leads. When all is said and done, the issue in these cases is going to be one of damages, not liability. In cases like these, Medtronic lawyers are going to have to have a lot more resolve to continue fighting than in the Vioxx cases where it appears that every individual case is an uphill battle.
While Vioxx would seem to be an awful model for Medtronic in the defibrillator class action lawsuits that are being filed around the country, the drug and medical device companies have a history of copying each other almost as a reflex. Accordingly, do not be surprised if Medtronic cuts off its nose to spite its face in trying a “wage war” strategy in the defibrillator lead defect cases. If this is the path Medtronic chooses, don’t expect that Medtronic will get the same pat on the back from Wall Street that Merck is now getting.