In his Nov. 17 “Talking Business” Column, New York Times columnist Joe Nocera meted out a scathing criticism of personal injury attorneys who represent about 27,000 victims of the defective drug, Vioxx, manufactured and aggressively marketed by pharmaceutical giant, Merck, a few years ago. I am one of those attorneys he criticized.
Nocera’s problem is not only with plaintiffs’ attorneys but with the justice system. His column is titled “Forget Fair; It’s Litigation as Usual.” Nocera asks this question: “Is a mass tort really the right mechanism to settle disputes about product safety, or to punish corporate wrongdoing?”
His answer, if you can guess from that sarcastic headline, is a resounding “no.” Nocera argues that product liability lawsuits make personal injury lawyers rich and leaves the people who were really affected with very little. He calls it an “unfair” system and a “rogue form of regulation.”
Well, Mr. Nocera, when the Food and Drug Administration doesn’t do its job and greedy corporate giants in the pharmaceutical and auto industry flood the market with defective products, who else is there to “regulate”?
The plaintiff’s attorneys of America make it their business to go after wrongdoers and hold them accountable. Mr. Nocera, how would you suggest holding Merck and other corporate giants liable when they have injured the public? Your article didn’t have an answer, it only complained about the only effective process we currently have in this country — a process that works.
There is no doubt that when studying the minute details of each individual case, there are plaintiffs who should be compensated and are not, and there are plaintiffs who are awarded more than maybe they individually should get (even though they rarely ever get what a jury awarded due to the “appeals” process). If Mr. Nocera would put his microscope on litigation in general, business litigation, family law cases, criminal prosecutions and so on, he will find the same thing, each individual case does not necessarily dole out perfect “justice” to the litigants. There are winners and losers.
That said, did Mr. Nocera give us the big picture? Did he mention that Merck’s stock went up in value multiple times the amount of the settlement after the settlement was announced? What a windfall for Merck and its stock holders. They made billions by settling the case of their own wrongdoing, did Mr. Nocera mention that?
Did he mention how much money Merck’s attorneys have made on this litigation? It’s a lot more than the plaintiff’s attorneys have made. Merck’s attorneys got their money at the end of each month, had all their expenses paid as incurred and had nothing at risk, ever. The plaintiffs’ attorneys will be lucky to see a cent a year from now for a battle we have been waging for over two years. The plaintiffs’ attorneys have risked millions. Our firm alone has hundreds of thousands into our cases.
However, what our system does do is provide every individual, business entity and corporation in America a relatively even playing field (although some participants can afford more and better lawyers, experts and support troops) to have their disputes resolved. This playing field is what we call our “justice system.” It does not produce pure or perfect “justice” (whatever that might be) in each individual case. It is a system to produce justice in general, and it works better than any other system employed in our world today. What comes out of this “system” is that we define as “justice.”
Merck played the litigation game very well. Its army of attorneys won 10 out of the first 15 cases. Its army of attorneys were initially better equipped and financed to take on the attorneys representing the people harmed by Vioxx who were out gunned and out financed by one of the world’s richest corporations.
But the little guys didn’t give up. They banned together. They combined resources to gain the strength to take on one of the world’s most powerful multi-national corporations.
So, armed with their 10 wins in 15 cases, Merck worked out a settlement with the little guys that would compensate the victims and dramatically raise the price of Merck’s stock. So our “justice system” worked. It compelled the litigation participants to settle the matter themselves, rather than leave it to our “system” to do it for them, which is the design of our system and it work. It works every day.
The vast majority of the legal disputes in this country are settled without a trial because we have a system, that isn’t perfect, that will resolve the dispute for the litigants if they cannot do it themselves. And that system doesn’t necessarily get it right in each individual case.