The Post's trust in the drug industry and the Food and Drug Administration is either naive or uninformed ["The Vioxx Hex," editorial, Sept. 16]. That Merck has "already paid a price for that negligence, in the losses it has suffered after abruptly taking Vioxx off the market" is similarly wrong.

Please consider:

* Merck hid data and medical information from the FDA.

* When the FDA ordered Merck to warn of heart risks with Vioxx, Merck negotiated the label changes for almost two years, noting that even a four-month delay of changes would make the company an extra $229 million. Meanwhile, Merck executives cashed in on pay and stock options. The company's top three executives made hundreds of millions of dollars over the short life of Vioxx (1999-2004).

* David Graham with the FDA estimates that there were 88,000 to 140,000 excess cases of serious coronary heart disease over the five years that Vioxx was on the market in the United States.

* Merck is intent on trying all 5,000 pending cases. If the courts manage to try five cases a year (a monumental feat, actually), Merck will face justice in 1,000 years. The only way to force Merck to pay its victims fairly is the threat of paying large damages to those five cases each year facing trial.

We cannot be soft on companies that cause needless deaths. We must catch those doing wrong and punish them.



The writer is the attorney for the plaintiff in Ernst v. Merck.


The Post said: "Fair compensation for the injured needn't entail disproportionate financial punishment" for Merck and Co., the maker of Vioxx.

But Merck need not fear. The company's penalty for contributing to a man's death is a mere 0.01 percent of its gross profit from last year.

As a law student, I have learned that punitive damages are meant to deter wrongful conduct and encourage responsible behavior. We don't want to bankrupt drugmakers, but we shouldn't have to cross our fingers each time we pop a pill and pray that we don't become the next minuscule Merck write-off.

The Post editorial did get it right in one respect. In the long term, thanks to tort reform, using the courts to "send a message" to Merck isn't going to help consumers.