Sebastian Mallaby decries the cost of Vioxx litigation (Monitor, May 5), but he dangerously obscures the facts regarding this scandal. Like so many who place profits over safety, he also makes a wrongheaded attack on our judicial system.

Mallaby's piece expressly advises President Bush to use the Vioxx litigation for political gain. He claims that the first Vioxx jury simply got it wrong: According to Mallaby, the victim could not have died from Vioxx.

But the only group that took an oath to render a decision in the case based on the evidence alone was the jury. The jury spoke clearly: It decided Merck had caused a man's death and should compensate his survivors for its wrongdoing.

Mallaby neglects to mention the following:

• Merck had plenty of reason to know Vioxx was dangerous well before its voluntary recall of the drug.

• Merck hid the danger from regulators.

• Merck convinced regulators to delay a labeling change in 2001 (thereby creating a four-year window of undiluted profits) that would have given greater emphasis to the dangers of Vioxx.

According to the ChicagoTribune, some jurors stated that they were shocked by what the evidence revealed.

If tort reform is called for, then a full debate about the costs of medical malpractice, including the costs to victims, the cost of attempting to avoid responsibility to victims and the cost of identifying weak claims, may be in order. But trying to leverage a single jury decision into condemnation of the entire structure of how justice is meted out when science is involved is not intellectually honest.

Then there is Mallaby's claim that the Vioxx recall was voluntary. Testimony has shown again and again that Merck knew a great deal about the risks of Vioxx - the same risks it now admits were too high for the drug to be considered safe - long before it recalled the drug.

Is it legitimate to describe as voluntary a recall carried out only after the truth can be hidden no longer? Not if your real goal is patient safety, as Merck's website says the company's goal is.

On the basis of what you have learned in the news about Merck's behavior regarding Vioxx:

• Do you believe Merck made patient safety its top priority?

• Do you believe Mallaby is right when he says, "Open societies flourish because they are driven by intelligence and information; the U.S. tort system creates an enclave of idiotic whimsy in the heart of the most open society in the world"?

• Do you consider yourself intelligent enough to participate in the U.S. tort system?

Trial lawyers trust juries because no better system has been invented for deciding justice. So what is it about the collective wisdom of ordinary citizens - about our jury system - that corporate apologists like Mallaby fear so desperately?

Answer: Most ordinary citizens place safety over profits while corporate apologists put it the other way around.

That is the true shame of the Vioxx litigation.

(Doug Grauel is a lawyer who lives in Bow.)

By DOUG GRAUEL

For the Monitor