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Wednesday, August 24, 2005

More about the Vioxx verdict

My friend Patterico teases me, justifiably, about some of the longwinded comments I leave on other bloggers' sites. He tells me that I ought to post those remarks here and simply link. He's probably right; I'm a serial bandwidth abuser by nature, and ought to stick to abusing my own.

My most recent series of comments have been on this post over on Prof. Stephen Bainbridge's blog. Prof. Bainbridge has been among the most articulate critics of last week's Vioxx verdict from Brazoria County, Texas, which I first wrote about here on Saturday. But I also vented a bit in comments on Prof. Larry Ribstein's blog, and I'd have vented some more in response to this post by Ted Frank if the Manhattan Institute's Point of Law blog permitted comments.

These are very smart lawyer-bloggers whose opinions I often agree with and always respect. But I part company with them pretty dramatically when they start to disparage, even mock, the civil jury trial system. I won't reprint here my various comments there over the last couple of days — if you haven't visited their blogs, you ought to, and now would be a good time — but suffice it to say that I have a much higher regard for the general decision-making abilities of juries, and I also seem to have a very different view than they do about the ability in general of capable defense lawyers to hold their own for their clients in that system.

I just don't know anyone who's tried a bunch of civil jury cases through to verdicts who holds the system in such disrespect. To the contrary, my subjective personal experience is that real trial lawyers — in my nomenclature, that doesn't mean "plaintiffs' personal injury lawyers," but rather "lawyers who regularly try cases to verdicts rather than settling all their cases" — from both sides of the docket tend to respect the system in almost direct proportion to their experience in it. Scary-smart nonlawyer Megan McCardle (a/k/a Jane Galt) quotes, for example,

[a]n acquaintance who is a securities litigator [who] told me shortly before 9/11 that they try their damndest to keep cases out of court, because the issues are so complex that even the lawyers have a hard time getting a handle on them, and "if you explain it to the jury, it takes six weeks, and they hate you more with every minute — and at the end, they still don't understand it."

How do the jurors decide the cases, then? I asked. She shrugged. "Beats me."

Well, gosh, I'm sorry (because there's no way to say this without being insulting to Ms. McCardle's friend), but that sounds to me exactly like what a candy-assed litigator — someone who doesn't regularly try lawsuits, has never regularly tried lawsuits, has probably not tried many if any total lawsuits of any sort or size, and who is undies-soiling terrified of ever trying lawsuits because of an intense, hidden fear of being proved professionally inadequate to try lawsuits — would say. "Beats me," she says? Yeah, I'd bet pretty much anyone with an ounce of guts (or even the ability to fake having guts) could. If that lawyer's opponents know just how little respect she has for juries, they'd never settle until they had a jury picked and in the box, and then they'd always be sure of getting top dollar.

Back in February 2004, I wrote a long war story about a six-week "bet the company" securities fraud jury trial that I first-chaired some years ago. I was incredibly gratified by how much extremely technical material our lay jury not only followed, but actually mastered. They understood; they didn't hate the lawyers; and collectively they performed a valuable public service that every one of them should be proud of for the rest of their lives.

Yes, I understand that there's a selection bias involved in my experience. It would be odd, I suppose, for me to have run into very many highly successful, experienced trial lawyers who also deeply despise the juries before whom they practice. But also by definition, the population I'm quasi-sampling here includes superb lawyers who've lost some huge cases; and they don't whine about how flawed the jury system is and how dumb jurors always are. The single best courtroom lawyer I've ever seen in my career — one of my early mentors and idols — is the lawyer who first-chaired Texaco's defense in the Pennzoil v. Texaco jury trial. To say that loss "stung" is a multi-billion dollar understatement; but part of what I learned from him, in addition to how to suck it up and soldier on after sometimes getting whipped, is to respect the role and the collective intelligence of civil juries.

As of this moment, Megan's post has some eighty-three comments — quite a few of which I disagree with, but almost all of which I'm impressed with. Now I'll readily agree that the kind of readers drawn to her blog probably don't very closely approximate the average pool of potential jurors in Brazoria County, Texas — or in Manhattan for that matter. But it's not like we're talking about entirely different species — a race of juror-humans, on the one hand, who're pre-literate and still trying to get the hang of flint tools, versus evolved twenty-first century internet-savvy MBAs who can easily run up 83 comments second-guessing everything about the first Vioxx trial. When there's even one juror out of twelve who's a quarter as articulate and bright as Megan's average commenter, he or she can become an opinion-leader who can raise the overall level of a jury's internal discourse immensely. And trial lawyers, on both sides of the docket, do understand that dynamic. (It's quite common, if offensively blunt and usually speculative, for lawyers who are trying to decide how to exercise their peremptory strikes to divide prospective jurors into "leader" and "bench-warmer" categories, for example. You might rather let three fairly hostile bench-warmers onto the jury rather than one merely skeptical opinion-leader.)

When I read through, for example, Ted Frank's criticisms of the results of this trial, I've got to believe that almost every point he makes coulda been, shoulda been, and probably was indeed made by Merck's lawyers in open court. That jury didn't buy those arguments — not because the jurors were stupid or incapable of understanding them, but because they found the arguments and evidence offered by Mrs. Ernst's lawyers and witnesses more persuasive, more accessible, more credible, more sensible. When I read Ted point out what look like gimmicks that the plaintiff's team used to connect with the jury, my reaction is, "So? You don't think Merck's lawyers did their very best to do the same?" These gimmicks are, in the vernacular, guns that purt-near always kick as hard as they shoot; they can blow up in your face or break your chin, especially if your opponent knows a bit of ju-jitsu and can translate your momentum into a huge fall. And your opponent always does get a turn.

Anyway ... having rambled and ranted (or, as I'd prefer to characterize it, "counter-ranted") now both on my own blog and these others, I'll declare a halt now, at least for tonight. I still don't have a strong and confident opinion as to whether this particular verdict was or was not a just and justified one. But golly, I did manage to get riled up anyway after reading what some of these other very bright and articulate bloggers have written, didn't I?

Posted by Beldar at 11:28 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to More about the Vioxx verdict and sent a trackback ping are listed here:

» The choice of law solution to the liability problem from Ideoblog

Tracked on Aug 25, 2005 5:59:25 AM

» Catching my eye: morning A through Z from The Glittering Eye

Tracked on Aug 25, 2005 2:20:04 PM

» More on Merck and Juries from ProfessorBainbridge.com

Tracked on Aug 25, 2005 6:01:39 PM

» Juries from janewoodworth's JournURL weblog

Tracked on Aug 27, 2005 8:19:40 AM

» Juries and Scientific Evidence from ProfessorBainbridge.com

Tracked on Aug 30, 2005 8:33:26 AM


(1) Patterico made the following comment | Aug 25, 2005 9:31:20 AM | Permalink

It's nothing to do with bandwidth; I just think posting your comments gets them more prominence. I post long-winded ocmments myself, but I am starting to do so less and less. The motto: if it's important enough to say in a comment, it's important enough to post.

(2) Norman Rogers made the following comment | Aug 25, 2005 9:56:05 AM | Permalink


Let me give you my perspective -- both as a litigant (I've paid to put braces on the teeth of more lawyers' kids than any man should have) and as a fact witness -- both impartially and with a dog in the fight.

Juries really are smart -- in the same way most folks are smart: they can spot a phony and when asked an honest question they'll try to give an honest answer (a verdict).

The problem with the VIOXX case (and asbestos and breast implant and tobacco and most product liability cases) is that juries cannot and ought not be asked to evaluate questions of scientific facts. Juries can be and are swayed by the believability of witnesses and lawyers who often can talk over the heads of the jurors.

The issue (for me) in the VIOXX case is whether the judge ought to have permitted the question of whether VIOXX could have caused the man's death to get to the jury at all. From what I've read the man's death was caused by a blood clot and that's just not indicated in any of the studies.

And the pernicious result of a verdict like this is that we the general public will get fewer drugs developed to help us and we'll pay more for them.

(3) Chris made the following comment | Aug 25, 2005 10:17:36 AM | Permalink

I think it is hard to sqaure your experience with "how much extremely technical material our lay jury not only followed, but actually mastered" with the comments of the Vioxx jurors who said things like "'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.'" (from WSJ)

(4) Eh Nonymous made the following comment | Aug 25, 2005 11:34:26 AM | Permalink

Chris: you miss the point completely.

When a juror says "wah wah wah," that means not that the juror failed, but that the lawyer failed.

Think it through.

If I can't keep your attention when I'm making my argument, how can I persuade you? If my argument makes no sense, or my words or delivery are flawed, how much of my earnest brilliance will come through?

First, you communicate, you connect. _Then_ you persuade. It looks like Merck essentially failed at step 1.

(5) James B. Shearer made the following comment | Aug 25, 2005 1:25:55 PM | Permalink

Beldar, what is the point of allowing juries to award punitive damages far in excess of what Texas law allows? This just make the jury look bad when the judge throws out most of the award. Why not have the jury figure actual damages first and then send them out again to award punitive damages up to $x, the Texas limit, if they wish? Perhaps with another round of arguments about whether punitive damages are justified.

(6) Al made the following comment | Aug 25, 2005 2:35:00 PM | Permalink

Would it help anything if 'perjury' were more frequently prosecuted against expert witnesses?

A charismatic 'expert' can be quite convincing even when spouting complete hogwash.

(7) Speedlimit made the following comment | Aug 25, 2005 3:26:00 PM | Permalink

Verdicts like that in the Vioxx case bring out the worst in everyone. Those who are appalled overreact by proposing sweeping changes in the jury system. Those who have a vested interest in the jury system blame the losing attorneys for not misleading the jury as much as the plaintiff's counsel did. From my vantage point, this verdict was simply the product of an angry jury. However dolled up by Mr. Lanier, who seems to have been given all the leash he wanted, the facts in this case were such that many people, regardless of education or background, would likely have reacted similarly. Given that,it would have taken a very strong judge with tough instructions and one or more strong jurors committed to follow those instructions. Neither of those conditions appears to have been present. If hard cases make bad law, harsh results make bad policy. This case says absolutely nothing new about the jury system that has not seem shown many times before. And, with respect, none of the commentary has advanced the ball over arguments that go back decades.

(8) Thomas J. Jackson made the following comment | Aug 25, 2005 3:29:36 PM | Permalink

I have only served on three juries, Twice for criminal and once for civil. I was heartily disgusted by the behavior of jurors who ignored the evidence and made decisions based on, "he looks like my nephew and he wouldn't have done anything like that."

Or after having a ten year pattern of theft demonstrated by IRS records a juror made the statement, "I can't believe he really intended to steal."

The problem is that judges allow lawyers to cloud issues by throwing in irrelevant or misleading arguments. Our legal system stinks because you can manipulate the composition of juries. Worse is the conduct of lawyers who don't give a damn about the truth only winning.

(9) James B. Shearer made the following comment | Aug 25, 2005 4:46:33 PM | Permalink

Beldar, you didn't particularly care for the way Sandra Day O'Connor decided cases but don't juries decide cases the same way only more so?

(10) Beldar made the following comment | Aug 25, 2005 5:34:06 PM | Permalink

Mr. Shearer, current (and long-standing) law in Texas is very clear: "The jury may not be made aware of the effect of its answers," says the rule, which in practice means that the judge and the lawyers are forbidden to explain things like legislatively imposed caps on certain types of damages that the judge may be obliged to apply to a verdict in the process of turning it into a final judgment.

I honestly don't know how it originated, but for a long time the rule was mostly used to great and pernicious effect by defendants — the classic example being before the legislative modification of "comparative negligence" to supplant the common-law doctrine of "contributory negligence." The jury was asked if the defendant was negligent and, if so, whether that was a proximate cause of the plaintiff's injury, and then it was asked if the plaintiff himself was negligent and if so, whether that was (another, contributing) proximate cause of his injury. Under the old common law, if the answer to the questions on the plaintiff's own negligence were "yes," then BAM — the plaintiff was barred from any recovery whatsoever, even if his own negligence was trivial in comparison to the defendant's. And the lawyers were forbidden from telling the jury how that would play out, so the effect of the rule was to deny all compensation to a great many plaintiffs whom juries fervently intended should be compensated.

Even today, when jurors are asked to quantify the relative causation of negligent parties and responsibility may thus be apportioned among them — with plaintiffs' recovery being sliced in proportion to their own negligence — many states, including Texas, forbid any recovery at all if the plaintiff's own negligence exceeds the defendants'; and again, because of the "can't tell them the effect" rule, defense lawyers regularly, and sometimes successfully, expend mighty efforts to get juries to write down a 49/51 split instead of a 50/50 split, because the resulting difference is between the plaintiff recovering none and half of the damages assessed.

Sometimes the shoe has been on the other foot. Famously among Texas lawyers, the state's general-purpose consumer protection statute, as originally passed in 1976, required judges to automatically triple every single award of actual damages — a concept borrowed from federal antitrust law. The practical result was that verdicts from, for example, home repair cases began to regularly produce judgments far in excess of the market value of the plaintiff's home because jurors were forbidden to know of the trebling of the damages they awarded.

That statute's been amended several times, and now the treble damages are no longer mandatory. Instead, the jury is permitted to make an additional discretionary (quasi-punitive) award for certain types of damages if they've found that the defendants' misconduct was intentional; in practice, juries usually infer that whatever they put in that blank will be tacked on by the judge to what they've put in the previous blanks, but they're still not told that there's a three-times-actuals cap, for example.

Nor are Texas jurors permitted to be told that the law will typically require the trial judge to tack on an amount to the jury's damages awards for prejudgment interest, and to provide that post-judgment interest may also be collected; in some cases, that can turn into a significant chunk of change.

In general, I think this whole rule is pernicious, and I'd like to see it abolished. But I suppose there's an argument to be made that permitting juries to fill in the punitive damages blanks with extravagent sums that will never be awarded at least allows the jury to "send a message" — "we woulda hit ya harder if'n we coulda."

Also, it's indeed possible now in Texas for judges to hold bifurcated proceedings in which liability and actual damages are decided first, and then additional evidence that relates only to punitive damages (e.g., evidence of the defendant's net worth) is presented before the same jury goes back into the jury room to decide whether to award punitive damages and, if so, how much. But the defendant has to request the bifurcation, and the current trend among defense lawyers seems to be not to do that — I suppose on the theory that they come off worse in the long run by letting juries build up a good head of steam the first time they deliberate, and by the second time they get back in the jury room they've "forgotten" how hard they've already punched the defendant with actual damages.

As for the ad hoc nature of jury verdicts: I grant you the point that it can produce inconsistent results. The difference is that when Justice O'Connor does that, it makes for careening national precedents ping-ponging across the ages: Now anti-sodomy laws are constitutional, now they're not; now capital defendants who were under 18 when they committed their crimes may be executed, now they can't; affirmative action at Michigan Law School is okay, affirmative action at the University of Michigan isn't. Appellate court pronouncements as to what the law is are not supposed to be so fact-specific.

Mr. Jackson, my experience is that jurors will talk about a great many more factors than they actually find determinative in casting their votes. I'm curious, for example, whether both of the criminal juries you participated in hung because you couldn't reach a unanimous verdict — were you odd-man-out both times? As for lawyers attempting to manipulate jury composition and only caring about winning, the premise of the civil adversary system is that each side's lawyers are supposed to zealously represent their respective clients within the bounds of the law, rather than hamstringing their clients' respective cases by privately handicapping them as to how hard to pull some punches. The theory is, and has always been, that the truth is most likely to be revealed by the presentation of strong cases forcefully made by competing advocates of approximately equal quality operating under the same rules. I'll grant you that it's a hard system to keep properly calibrated, but when it's in proper tune, it's a powerful engine for determining the truth — better than any other yet devised.

Speedlimit, I tend to agree with your observations, and yes, I've heard these same arguments or very similar ones after every huge plaintiff's win that's caught the public eye throughout my career. The arguments haven't much changed, but the law certainly has, at least in Texas and with respect to punitive damages caps! However, I'm generally in favor of judges giving long leashes — to both sides, mostly because I genuinely prefer in most situations to tie my client's fate in court to a jury's collective common sense over a judge's individual views. (The judges' views always come into play later anyway, to at least a limited extent and particularly in the event of outrageous results, during post-verdict proceedings.)

(11) Beldar made the following comment | Aug 25, 2005 5:43:39 PM | Permalink

Re-reading my last comment, I realize that I've shorted the arguments in favor of the "can't know the effect" rule, probably because I disagree with it.

Proponents of the rule would argue that the jury's job isn't to render justice as such, but simply to decide disputed facts. Taking those fact-findings and applying the appropriate law to produce justice is the job of the judge. And telling the jurors the practical effects of their answers supposedly encourages them to "decide who they want to win and who they want to lose," and then to answer the questions in a way that will produce the desired result, rather than strictly resolving the disputed facts. Having them focus on results is supposed to cloud their critical judgments on the facts, encourage them to decide cases based on their biases and prejudices, and generally play God (a role reserved for judges).

But my view is that the distortions and additional gamesmanship this rule introduces into the system are usually worse than the (sometimes runaway) populism it's trying to restrain.

(12) steve sturm made the following comment | Aug 25, 2005 9:03:25 PM | Permalink

Is there a bit of the Stockholm syndrome at work here: the more time a lawyer spends in court, the more he appreciates those who he comes into contact with?

Maybe the stories coming out of the Vioxx case are being presented out of context or being blown up out of proportion.... but I can't profess to have much admiration for a jury when Ranier thinks the way to score points with them is to talk up Oprah.

And, how can you say that Texaco's attorney was so good when it was his (widely criticized) failure to present an alternative damages calculation that left the jurors free to award Pennzoil $10 billion? His all or nothing play on the amount of damages was reckless given the money at stake - and it cost his client (and their shareholders) dearly.

(13) steve sturm made the following comment | Aug 25, 2005 9:06:20 PM | Permalink

oops, sorry about the typo on Lanier's name... clumsy fingers at work.

(14) James B. Shearer made the following comment | Aug 25, 2005 9:19:57 PM | Permalink

Beldar, you claim above that the jury system is the best system for determining the truth yet devised. This strikes me as something only lawyers are likely to believe. Perhaps I am prejudiced but in my opinion the scientific method is a clearly superior method for determining the truth.

I don't think it is even the purpose of the court system to determine the truth, the purpose of the court system is to resolve disputes.

(15) Carl Pham made the following comment | Aug 26, 2005 5:28:24 AM | Permalink

I'm with Mr. Shearer. Back in the day, when the facts juries were expected to find pretty much related to who really said and did what to whom when, and the jurymen mostly knew the principals, since they lived in the same burg, it made all kinds of sense to assemble 12 good men and true to impartially vet the statements of plaintiff and defendant.

But...this admirably efficient system has today been stretched very far past its original purview. Juries are now expected to decide all kinds of hairy scientific and technical truths that can and often do defy experts. Did Vioxx cause or even contribute to so-and-so's death? Christ, who knows? We know little enough biochemistry you might just as well consult the I-Ching as the most expert of experts. That's a fact of life, when it comes to hideously complex natural systems. (Beldar's example of a jury understanding a complex securities transaction I consider an unpersuasive example, since however complex the transaction was, it was designed by men and ipso facto comprehensible by men. The same can not be said of the biochemical interactions of a drug with the human body.)

So now we have evolved to this odd system where the jury is not so much expected to decide actual facts (this being far beyond their competence) but rather to decide the fact of which expert is telling the truth. A 12-cylinder lie detector, of sorts.

This isn't completely moronic, I agree, but it's a little weirdly removed from what most reasonable people would call fact-finding. If I want to know with confidence the height of the Great Pyramid of Cheops, most people would say I should buy a measuring tape and book a flight to Egypt. The idea is odd that this fact could equally well be ascertained by interviewing a bunch of surveyors who each claim to have measured the pyramid and deciding which of their conflicting opinions to believe.

Do I have a better system? Alas, not. Generally we simply trust our experts to make judgments on complex issues for us. But this case was precisely about whether experts -- Merck's biochemists and physicians -- were trustworthy. Quo custodiet ipsos custodes? Heck if I know.

(16) Beldar made the following comment | Aug 26, 2005 10:34:29 AM | Permalink

Steve, I was lucky to have a uniquely privileged position to watch the drama of Pennzoil v. Texaco unfold. I started to respond in detail to your observation here, but realized that it's the sort of topic I should handle in a separate post — maybe even in a series of posts — which I'll try to do in the near future.

(17) KJ made the following comment | Aug 26, 2005 5:06:08 PM | Permalink

I have tried a good many cases. I have been impressed and disgusted by jorors comments to me after the trial about what influenced the outcome (the most disgusting was a case I won and shouldn't have). I've watched mocked juries on three occassions and in all three was disgusted at the diliberation process.

Like any good system, it has serious flaws at times. I think juries are great at car wrecks and simple crimes. I think the more experts are required, the less reliable the jury becomes.

I do not believe that the Vioxx outcome had a thing to do with the "truth" of the scientific evidence. I think it had everything to do with which expert and lawyer they liked (and since I know a little about what happened at the trial, I am confident that "attitude" had as much to do with it as "evidence").

(18) steve sturm made the following comment | Aug 26, 2005 9:38:00 PM | Permalink

Beldar - I look forward to reading your account of the case. My slant on it came (mostly) from Petzinger's Oil & Honor.

(19) kbiel made the following comment | Aug 31, 2005 12:25:35 AM | Permalink

It seems to me that those who dislike juries betray a certain elitist attitude. They are also the kind of people who believe that the average citizen can not and should not interpret law. I once ran into this attitude with Scott Adams of Dilbert fame and he and I went round and round via e-mail regarding copyright law and the internet. His conclusion was that I could not possibly offer an intelligent opinion on the matter because I had not taken a class on copyright law while he could because he had a business degree. The problem with that type of attitude is that it misses two critical facts: 1) Our Constitution was written largely by people who, while educated, were not educated in law. Those who were educated in law were self educated mostly and then passed an exam (try that these days). 2) If the average citizen can not read and understand the law, then we are all doomed. Incomprehensible and byzantine laws encourage a disregard for laws in general.

Anyone who can be elected to the legislature that makes the law should also be able to sit in a jury and decide how that same law applies to a given set of evidence.

Remember, juries (and courts in general) find facts not truth. If the truth were knowable, then the case probably would never have made it to the jury in the first place. Are there juries who maliciously or negligently decide a case in favor of one party or the other without regard for the evidence? Certainly there are, but there are also legislatures who write and pass laws with malicious intent also. (Jim Crow anyone?) Should we do away with legislatures and install a king because of that?

(20) Salaryman made the following comment | Aug 31, 2005 1:14:04 PM | Permalink

I'd appreciate links (if anyone knows of any) to blogs or online articles that follow Bill's advice and "take a closer look at the evidence [and determine] if [the verdict] was right." Without some independent basis for determining whether Vioxx caused Ernst's death, it's impossible to even start discussing whether the jury was at fault. Until we know whether something actually went wrong, and an unjust verdict was rendered, what's the point of arguing about what may have caused it to go wrong?

(21) Carl Pham made the following comment | Aug 31, 2005 5:08:04 PM | Permalink

kbiel, I don't think people dislike juries, they just dislike the ideas of juries deciding cases in which they need to make judgments far outside their personal expertise and experience.

By analogy: suppose you go to the hospital with some chest pain. Possibly you've got gas and should just take some bicarbonate, or possibly you're having a heart attack, and need a clot-buster and maybe a stent right away. The question of the correct therapy clearly rests on the correct judgment of whether you're having a heart attack.

Most of us would be pretty uncomfortable if this key fact were resolved by the hospital gathering 12 random people off the street, presenting them with the evidence, and asking them for a majority decision. They might well be decent, reasonable people who will do their best to come up with the right decision. But they're going to have a hard time, because cardiology is a tough, complex field to master, and amateurs winging it are usually going to go wrong.

This is the problem. The question before the Vioxx jury was: what is the correct legal "therapy" for Ernst's death? The problem is that the answer clearly depends critically on knowing why he died. And that complex medical question is unfortunately not really something which the average citizen is competent to answer.

We edge around this a little by arguing that the average citizen is competent to decided which expert to believe, and assuming at least one of the experts is competent enough to decide the underlying complex question.

But I think this is not very satisfactory. I think people are actually not very good at detecting error unless they are familiar through their own experience with the field in question. That's why people fall for con-artist bullshit all the time.

So if average folks are not so good at telling when the latest herbal remedy or gas-mileage boosting gas additive hawked on cable TV is a con or not, it's very hard to see how they are going to be experts in deciding which cardiologist's opinion is most likely correct.

But I'm damned if I know what can be done about this. It may be one of those problems that have no solution.

(22) Carl Pham made the following comment | Aug 31, 2005 5:42:18 PM | Permalink

Salaryman, I think you are going to be disappointed. The only evidence that I've heard of linking Vioxx to heart troubles is purely statistical. That is, people who take Vioxx are very slightly more likely to have heart attacks and strokes.

But why? No one knows. It's just one of those weird side effects that sometimes happen with new drugs, which (since they're low probability) you only find out about after millions of people take them for years (i.e. you can't easily find out about them before the drug is approved).

So how could you figure out if Vioxx killed this particular person? You can't. Statistics only applies to a population, not to any individual. People who smoke are statistically more likely to get lung cancer. Does that mean a particular victim of lung cancer must be a smoker? Nope. Does that mean a particular smoker is going to get lung cancer? Nope. Does it even mean that if a particular smoker gets lung cancer, smoking was the cause? Again, no.

So in one sense the Vioxx verdict is logically ludicrous. In order to decide for the plaintiff, I believe they had to decide Vioxx actually caused her husband's death. But without a known chain of causation between Vioxx and Ernst's death, each link of which can be examined and tested, and given the fact that there are a huge number of other ways in which heart attacks can come about, it's just not logically possible to know that Vioxx did him in. Furthermore, whatever the precise statistical probability of Vioxx causing his death, even the plaintiff would have to agree it is very small, since millions have taken Vioxx and less than oh say 0.01% have died. That is, the a priori probability that Vioxx killed Mr. Ernst is less than one chance in ten thousand. It is overwhelmingly probable that his particular death had nothing at all to do with Vioxx. And without a chain of causation we can follow, there's no way of knowing whether he does in fact lie at the end of a certain long, tenuous, unlikely but solid chain of cause and effect.

Nevertheless, the jury verdict makes sense from the point of view of punishing Merck if we consider that he must be either a victim himself or (at worst) a stand-in for other victims, whom we necessarily can't identify either, but who we know, on statistical grounds, must exist.

(23) James B. Shearer made the following comment | Aug 31, 2005 11:04:07 PM | Permalink

Carl Pham, I believe the actual legal standard is whether it is more likely than not that Vioxx caused the death. Furthermore your argument that the probability that Vioxx caused the death must be very small because most people who take Vioxx do not die is not valid because it is undisputed that the man did die. What matters is how many people taking Vioxx die compared to how many would have been expected to die. If for example 1000 die versus 900 expected deaths then Vioxx is responsible for about 100 excess deaths and the probability that Vioxx caused any particular death is about .1. Actually this calculation should be done for the cause of death and not deaths in general. So if 200 die of heart attacks vrs 100 expected deaths by heart attack then Vioxx is responsible for about 100 deaths by heart attack. So the probabilty that Vioxx caused any particular death by heart attack is about .5 (while the probability it caused any of the remaining 800 deaths is about 0). I believe it was an issue at trial whether the man's cause of death was one of those for which an elevated risk has been established.

The more likely than not legal rule is a little strange in that it implies you are entitled to full recovery if there is a 50.01% chance that defendant caused your injuries but you are entitled to nothing if there is a 49.99% chance. It is arguable that you should be entitled to 50.01% recovery in the first case and 49.99% recovery in the second. I don't think this is ever the rule although I believe damages are sometimes apportioned in this way when there are multiple defendents and it is unclear which defendent was responsible for your injuries.

(24) Carl Pham made the following comment | Sep 1, 2005 1:55:36 AM | Permalink

Mr. Shearer, you are quite right that the correct cohort with which to compare is those of similar circumstances (taking Vioxx, actually died of a heart attack, et cetera). I was wrong.

Here is a popular article that cites a preliminary study on the risk of heart attacks from Vioxx. The study suggests an elevation of 32% while the drug is being taken at high doses. A priori one would therefore expect that the probability that a man who died while taking Vioxx was killed by the Vioxx was 24% (the probability that he's one of the 32 extra deaths in each 132 deaths of people taking Vioxx). Unfortunately, the precision of that number appears to be low. The percentage might be better stated as 32 +/- 10%, or worse.

Interestingly, all NSAIDs were associated with an elevated risk of heart attack, from 24% for ibuprofen (e.g. Advil and Motrin) to 55% for diclofenac (e.g. Arthrotec). Perhaps lawsuit will now drive all anti-inflammatory pain-relievers off the market, har har.

Good old aspirin -- my pain reliever of choice, given family history -- comes in once again as slightly reducing the risk of heart attacks.

I know nothing about the legal standards you mention, except that the idea that someone could be found liable for harm without a decision being made that they did, in fact, cause that specific harm strikes me as farcical.

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