Yesterday’s verdict from a New Jersey jury that exonerated Merck from any liability to Frederick Humeston marks a welcome change of course from the earlier decision of a Texas jury that held Merck liable (before reductions) for a quarter of a billion dollars in damages. The obvious first response to this difference in outcomes is to chalk up the differences to the relative strengths of the two cases. Frederick Humeston, the New Jersey plaintiff, was alive and well enough so that he could not convince any jury that his multiple health problems were attributable to the short period in which he took Vioxx. Hence the jury is (or 10,000 juries are) still out on the question of whether Vioxx will weather the long term storm.
In one sense, this is an optimistic account because it suggests that juries are able to wade through the relevant scientific information and make relative distinctions. But the proper story is not so sanguine. The huge expense of using law suits to determine outcomes remains. There will be many cases in which there will be real doubts as to whether an injured or dead person took Vioxx; there will be others where it becomes impossible to sort through the relevant medical evidence. The meter keeps ticking, and just a few outlandish verdicts could send Merck over the edge even if it prevails in a health majority of cases. This is no way to run a railroad.
Nor should the sensible verdict of the New Jersey jury reflect well on the Texas jury that made such a hash of the first Vioxx decision in Ernst v. Merck. There were still enormous difficulties with evidence that attributed the arrhythmia to a mysterious blood clot that came and went without a trace. There were still all the theatrics by Mark Lanier which showed his skill as a trial lawyer who knows how to command a court room, but little else. The long and the short of the situation is that the tort system is still the wrong way to deal with products that have already gone through an FDA process that is too stringent not to lax. So we should be delighted that Merck has dodged a bullet from a gun that should never have been fired. But even at this early stage in the process, there is no reason to break open the champagne bottles. Far too much uncertainty remains.