The Jury System And The Vioxx Verdict By Stephen Bainbridge

As a fan of limited government and an amateur student of the growth of English liberties (I once wrote a long essay on the roots of the right against self-incrimination in Stuart England), I have long accepted – at the level of an article of faith – that the jury is an important bedrock of our liberties. I must confess, however, that nothing since the OJ criminal verdict has shaken my faith in juries as much as the details coming out of the recent verdict against Merck in the first Vioxx suit.

At the outset, I am prepared to admit that the evidence of cover-ups and so on at Merck is non-trivial. But that wasn’t the gravamen of this suit. The question here was whether Vioxx caused Robert Ernst ‘s death. This is, obviously, a question of medical science. What killed Ernst and could Vioxx have caused it?

Unfortunately, if the WSJ($)’s reporting is to be believed, the jurors basically didn’t understand – and, indeed, didn’t even try to understand – the science:

Merck argued that Vioxx couldn’t have caused Mr. Ernst’s death because, according to his death certificate, he died of an arrhythmia or irregular heartbeat, not a heart attack. While scientific evidence suggests Vioxx can promote blood clots leading to a heart attack, no data have linked the drug with arrhythmias.

Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.”

At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck’s lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands.

Equally troubling are the reports suggesting that the jury was swayed by emotional and personal considerations.

… [juror] Ostrom, 49, who has a business remodeling homes, was also disturbed that former Merck Chief Executive Raymond Gilmartin and another top Merck official gave videotaped testimony but weren’t in the courtroom. “The big guys didn’t show up,” said Mr. Ostrom. “That didn’t sit well with me. Most definitely an admission of guilt.”

I have observed that giving folks unaccustomed to power a small dose of it often results in them taking offense at any perceived slight. (Mea culpa.) They expect to be kowtowed to and will react negatively when they are “dissed.” But are we really better off if the top Merck management has to spend the next 10 years or so sitting through thousands of trials? (I understand that cruise ships have two captains – one to actually run the ship while the other glad hands the passengers. Maybe that’s what Merck should do. One CEO to run the company, while another strikes jurors in every backwater court in the US.)

Then there’s the Oprah effect:

One juror, Ms. Blas, had written in her questionnaire that she loves the Oprah Winfrey show and tapes it. “This jury believes they’re going to get on Oprah,” Ms. Blue told Mr. Lanier. “They only get on Oprah if they vote for the plaintiff.”

Two days later, facing the jury with his final argument, Mr. Lanier … hammered home the point that they would be sending a message that would be heard widely. “I can’t promise Oprah,” he said, but “there are going to be a lot of people who’ll want to know how you had the courage to do it.”

As he made the Oprah reference, Mr. Lanier looked at Ms. Blas in the eye. She says she broke out into laughter and liked the lawyer’s attention to her. “That told me he read those profiles and tried to assess each and every one of us,” Ms. Blas said.

Leaving liability determinations in the hands of people like Ms Blas has real costs, as Richard Epstein explained in a WSJ($) op-ed:

“I would like to send my message to Mr. Lanier and those indignant jurors. It’s not from an irate tort professor, but from a scared citizen who is steamed that those “good people” have imperiled his own health and that of his family and friends. None of you have ever done a single blessed thing to help relieve anybody’s pain and suffering. Just do the math to grasp the harm that you’ve done.

Right now there are over 4,000 law suits against Merck for Vioxx. If each clocks in at $25 million, then your verdict is that the social harm from Vioxx exceeds $100 billion, before thousands more join in the treasure hunt. Pfizer’s Celebrex and Bextra could easily be next. Understand that no future drug will be free of adverse side effects, nor reach market, without the tough calls that Merck had to make with Vioxx. Your implicit verdict is to shut down the entire quest for new medical therapies. Your verdict says you think that the American public is really better off with just hot-water bottles and leftover aspirin tablets.

Ah, you will say, but we’re only after Vioxx, and not those good drugs. Sorry, the investment community won’t take you at your word. It realizes that any new drug which treats common chronic conditions can generate the same ruinous financial losses as Vioxx, because the flimsy evidence on causation and malice you cobbled together in the Ernst case can be ginned up in any other. Clever lawyers like Mr. Lanier will be able to ambush enough large corporations in small, dusty towns where they will stand the same chance of survival that Custer had at Little Big Horn. Investors can multiply: They won’t bet hundreds of millions of dollars in new therapies on the off-chance of being proved wrong. They know they’ll go broke if they win 90% of the time.

Your appalling carnage cries out for prompt action. Much as I disapprove of how the FDA does business, we must enact this hard-edged no-nonsense legal rule: no drug that makes it through the FDA gauntlet can be attacked for bad warnings or deficient design. In plain English, Mr. Lanier, you’re out of court before you make your opening statement. You’ve already proved beyond a reasonable doubt that the fancy diagrams that university economists use to explain why the negligence system maximizes social welfare is an academic delusion that clever lawyers use to prop up a broken tort system.

It would be a good start.

This content was used with the permission of Professor Bainbridge.

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