Merck, Pipe Down Before You Hurt Yourself

Ray Gilmartin's playing a dangerous game. He's blanketing the media with his message that Merck (MRK - commentary - Cramer's Take) did everything right. He's taking out full-page ads in the major media about Vioxx. He's gong on any television show that wants him. I am sure he would come to your apartment building or maybe your house to talk about how responsible Merck's been.

And all he's doing is stirring up more customers for the class-action jackals who exist to destroy American capitalism in the name of rewarding the injured few, or many, depending upon how many people suffered heart attacks from this pain reliever.

Mr. Gilmartin, save it for the jury.

In the last few days, I have seen tons of estimates for how much Vioxx might cost Merck. Some say $5 billion. Some say $10 billion. I saw a $12 billion one the other day.

None of these estimates mean jack. The issue with Merck isn't the size of the liability. It's the name of the judge. It's not the insurance. It's whether the judge favors capitalism or some sort of quasi-capitalism where the common stock gets journaled to the heart attack victims.

I wish that weren't the case. I wish I could be as optimistic as Gilmartin or as precise as the ridiculous drug acolytes who are so eager to quantify the unquantifiable. The simple truth, though, is that we don't know nearly enough to make any judgments.

Will some prosecutor decide to make a criminal case of this? Is that why Gilmartin's around so much? Could be. Makes sense. Someone in the Justice Department is always out to make a name for himself; what a great case it would be to bring big pharma to justice! You could run for governor on that one for sure, especially in a Blue State. Gilmartin's forthcoming approach buys him points with Justice; they go after the skulkers and hiders, not those who say they are innocent, front and center.

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James J. Cramer is a director and co-founder of TheStreet.com. He contributes daily market commentary for TheStreet.com's sites and serves as an adviser to the company's CEO. Outside contributing columnists for TheStreet.com and RealMoney.com, including Cramer, may, from time to time, write about stocks in which they have a position. In such cases, appropriate disclosure is made. To see his personal portfolio and find out what trades Cramer will make before he makes them, sign up for Action Alerts PLUS by clicking here. While he cannot provide personalized investment advice or recommendations, he invites you to send comments on his column to [e-mail]. Listen to Cramer's RealMoney Radio show on your computer; just click here. Click here to buy Cramer's latest book, "You Got Screwed!" Click here to order Cramer's autobiography, "Confessions of a Street Addict."