Musings on the Reinstated Merck Vioxx Securities litigation. . . .

A very insightful e-mailer has pointed out that this latest Merck Vioxx reinstatement decision (as ably-covered by Ed Silverman, two days ago -- he, lately of Pharmalot fame) related to securities fraud class action claims, may have unforeseen ripple effects in Schering-Plough's (and Merck's) current litigation firestorms -- those related to Vytorin/Zetia.

How so? Well, consider this possibility:

To the extent that Schering and Merck continue to soft-pedal the "possibility" that the SEAS trial cancer incidence data were indicative of an actually elevated risk of cancer while patients were taking Vytorin, this decision can be read (with its adoption of a "possibility" standard for notice of securities claims, for purposes of beginning the statute of limitations clock) to suggest that the clock has not yet started to run on the statute of limitations -- at least as to claims related to cancers that develop, or ultimately prove to be fatal, while the patient is taking Vytorin.

Said more simply, Schering and Merck may unwittingly be increasing the number of ultimately non-time-barred putative SEAS-cancer claimants (and injured securities investors) -- by taking this aggressive "positive spin" public relations posture on the SEAS cancer data. It would be fair to say that, as of this moment, the companies have not put the world on notice that there is a "substantial possibility" of a cancer event related (in some ill-defined manner) to being on Vyotrin.

Thus, as has long been believed by practitioners of the oldest Zen traditions of philosophy -- when one pushes entirely too hard for a particular outcome -- the opposite of that desired outcome (almost) always appears.



"Things that make you go 'hmmmmmmm'. . . ."