Merck Dodges (One) Bullet

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.   

Comments

[UC Alumnus]

"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."

Didn't Merck have the resources to hire as skilled and capable a trial lawyer to represent it? Why is it that when large corporate defendants use their virtually unlimited resources to pour out plaintiffs, we don't attribute the defendant's success to overwhelming resources rather than the merits of the defendant's positoin? Yet, when a plaintiff's trial lawyer dazzles a jury, the verdict is attibuted to the lawyer "who knows how to command a courtroom, but little else"?

Moreover, those who tend to complain about civil juries rendering extraordinary verdicts for plaintiffs tend to remain silent when criminal juries allow prosecutors to railroad defendants who don't have the financial resources to hire capable counsel. Criminal cases today, with DNA evidence and similar forensics, are no less complicated than civil suits.

[ziemer]

uc alumnus,

you don't seem to understand the article.

let me try to explain it to you.

state tort claims for failure to warn should be preempted when the drug has been through years of fda review, and contains a warning that is required verbatim by that fda.

as for jury trials in criminal cases, they remain the most pro-defendant system the world has ever known.

i take it you would prefer an inquisitory system to an adversarial one?

[brentbrent]

Professor Epstein's point regarding the wasteful nature of individual lawsuits for FDA approved medication is especially relevant during benefits open enrollment season. My contribution for my family health insurance policy increases by $55 per month next year. While I understand that there are a myriad of variables contributing to the increase, higher drug costs are certainly a factor and potential liability is certainly priced into the drugs. I think an arbitration arm of the FDA with power to award claimants could be a possible solution. The FDA would then have all the latest information about potential problems and claims. Such information would allow the FDA to better make a decision to pull a drug when the risks outweigh the benefits as well as inform health care providers of additional risks. The drug companies would benefit because specious claims would be weeded out by experts who know and understand the science behind the drugs. In short, the drug companies would still be respnsible for their products, the FDA would have better information, injured parties could still be reasonably compensated and hopefully we could reduce a small part of the systematic cost increases plaguing our health care system.