Smug Superiority Complex

Greg, the resentment that is reflected in your post frankly supports Professor Hamilton's view. If you are offended with the observation that a plaintiff's lawyer misled people untrained in statistical analysis regarding the true health risk of a helpful medicine, then it makes it extremely difficult to have a coherent discussion regarding the Merck/Vioxx case. Please step back, review the clinical evidence and the true economic damages here, and then respond. It will make for a much more productive debate.

Tom,

If by resentment, you mean my willingness to defend average, ordinary citizens and their right to decide complex situations, then I guess I'm guilty. But I find it impossible to connect two ideas that are tangential (yet significant) to this point: why is it the same ideological side of the spectrum that suggests 12 random jurors in Angleton are too naive to rule on a corporate liability case, but the same jurors can send someone to death. Or, for that matter, why are the same jurors who we hope to pick stocks in a privatized Social Security plan too naive to judge on the merits of a company's fault in a case like this? Clearly, there's a disconnect in ideological purity there. I'm just calling that out.

But I'll counter your suggestion of my offense at Hamilton's observation of the plaintiff's attorney and his "6-to-1" example. Where was the Vioxx attorney when that example was given? Were they not able to counter the mathematical dishonesty of that? Were their hands tied on that point? If the Angleton jury didn't get the other side of the story on that example, then that's a fault that, so far, the Merck apologists have failed to tackle.

If I'm to believe the court case was such a one-sided attack on Merck, that Merck's own attorneys had no opportunity to counter any plaintiff claims, then I'd have to cede way too much logic here. After all, the Merck attorneys DID try to pass off their own medical judgement on Ernst's heart attack while at the same time, disallowing the testimony of the coroner. Does that not indicate that there was some serious disingenuity going on by Merck, as well?

Lastly, you ask me to step back, review the clinical evidence and true economic damages here ... I'd love to if time permitted me to hear the case as a juror who got to pick and choose my own evidence. But, alas, that's more-or-less the purpose we designate juries for. Well, the jury heard the case and we all know the ruling. So are the jurors just a bunch of simpletons who clearly ruled unjustly? That's an open question that underlies much of the Merck apologies out there that I have yet to see any degree of honesty about. If the sense among the other side of this story is that the jury did something wrong, then please tell us where they went wrong. If the sense if that they ruled based on errant facts, then where's the finger-pointing at what is clearly an inferior corporate defense team? In short, what was Merck's retort to the "6-to-1" example? If they offered none, then perhaps the well-paid lawyers of the defense were no better than the Angleton jurors.

For some degree of fairness here, I think I should point out another tangential point that sheds some light on my views here. On my own side of the ideological spectrum, I've been just as critical among my fellow partisans who hold a seemingly equal dim view of those who voted for the "wrong" candidate for President (or any other office for that matter). My haranguing to them, as above, is that any view that begins with the premise that other people are dimmer than ourselves, is usually one that finds us (however "us" is defined) on the losing end. Politically, as I say, we aren't losing elections because the other side is stupider than us. In this case, the same rule applies ... Merck didn't lose because they managed to land in a court that represents the dumbest people in the world.

The question raised was "How did we arrive at a system in which 12 random Texans are assigned responsibility..." Check your history, the framers wanted plaintiffs and defendants (in criminal matters) to be judged by a jury of their peers because in jolly old England plaintiffs and defendants were getting screwed by officers of the Crown (judges) and the framers thought it might be a good idea to let 12 ordinary folks set the standards of conduct for their community.

The jury system of ours is truly the greatest opportunity to participate in our government and is admired througout the world. We hear so much about "my vote doesn't count." Well when you are on a jury, your vote counts.

My question to the people who want to do away with jurors is, "WHY DO YOU HATE AMERICA?"

Fight on!
Richard Morrison

Greg, thanks for response. Several observations.

I think you are making a mistake in attempting to politicize the issue here. For example, being an attorney and independent politically, I am by no means an advocate of all tort reform measures.

However, everyone in this country has an interest in making sure that our civil justice system does not create disincentives for companies to invest in and market drugs that help people. Similarly, we also all have interest in ensuring that our civil justice system does not increase the cost of medicines that help people. To the extent that the civil justice allows such disincentives and increased costs to occur, we all need to step back and examine why it occurred. In so doing, Professor Hamilton makes a fair point that the jury in the Merck/Vioxx case either disregarded or misunderstood the clinical evidence relating to Vioxx's risks (clinical evidence which is not disputed). My post at the outset of the Merck/Vioxx trial reviewed that clinical evidence, and Professor Hamilton's post simply examines the most recent clinical trial.

Your point about Merck's attorneys is a fair one. Indeed, I noted in one of my earlier posts on the Merck/Vioxx trial that the case looked lost for Merck after opening arguments. Lanier is a very effective communicator and he clearly outlawyered Merck's defense team.

However, if the jury is going to disregard (as opposed to simply misunderstanding) the clinical evidence regarding Vioxx's risks and also the true economic damages suffered by the Ernst Family, then it really doesn't make any difference who represents Merck, does it? Just as is the case with regard to questionable criminal prosecutions in our criminal justice system, if we allow our civil justice system to disregard the rule of law to allow juries to ignore the truth, do you really believe "that you will be able to stand upright in the winds [of a corrupted civil justice system] that would blow then?"

Finally, one other point. In defending egregious results such as that which occurred in the Merck/Vioxx trial, are not you really hastening enactment of that which you oppose? -- i.e., legislation that will reduce the individual's ability to redress damages through a trial before his peers in the civil justice system? Huge numbers of individuals -- many just like the jurors in the Merck/Vioxx trial -- are losing money on their investment in Merck because of this result. Similarly, hundreds of thousands of people who found relief from Vioxx are now suffering because a relatively safe drug has been pulled from the market. These numbers dwarf the small numbers of people who were truly injured by taking Vioxx. If those financially-damaged investors and Vioxx-deprived patients vote their feelings over this result, then the number of legislators promoting questionable tort reform legislation will likely increase much more than either of us would desire.

Two things should be noted. First is that the jury is asked to decide responsibility, not make a scientific determination. Science is involved, yes, but they're not asked to be scientists per se. If you're going to argue that this lawsuit asked lay people to decide specialist questions, that is true of the legal system itself: Every time a jury of lay people is called, it engages in a specialist realm of knowledge--whether it's forensics or the laws themselves.

Second, part of the job of the lawyers is to educate the jurors on the relevant facts. The original writer confuses that with his condemnation of the jurors, assuming that they went in dumb and came out dumb, to paraphrase Randy Newman. It is not the jury's responsibility to be familiar with all the related literature: It is their responsibility to take the arguments that both sides present and to decide based on those arguments and proofs. If the jury failed to understand what Tom considers such a critical point, then that perhaps is more the Merck lawyers' faults.

That said, I think it's just as problematic to assume that the masses are intelligent as it is to assume that they are idiots. People are capable of both intelligence and idiocy. With the Food Lion lawsuit, for example, in a 20/20 interview with some of the jurors, one woman remarked that she based her decision in part on how a judgement against Food Lion would harm the company, saying that it wasn't right. The foreman who was there went ballistic, repeating the judge's specific instructions to disregard such impact.

Juries (or voters) can be wrong and even ignorant in a particular decision without their necessarily being idiots.

At issue in this trial was not "was Merck guilty of repressing information about a product it had on the market?" but should have been "was Merck's repression of such information responsible for Robert Ernst's death?" It is the ability to distinguish between these two questions which was apparently lacking in the Angleton jury.

"After all, the Merck attorneys DID try to pass off their own medical judgement on Ernst's heart attack while at the same time, disallowing the testimony of the coroner."

Aren't YOU being a bit disingenuous there? It was not Merck's medical judgement that Merck tried to push before the jury, but the coroner's judgement, as written in the death certificate. What Merck tried to disallow was the last minute introduction of the coroner to provide altered testimony. This testimony was that there was a possibility that a clot lasting less than a second would have triggered that arrhythmia that killed Mr. Ernst, leaving no other evidence that it occured. What evidence was there to support this theory? What observation was there that would have been more probable if this theory was true than if it was not? Absolutely none! There is a word for such things: speculation. Speculation that is as much abuse of the coroner's credentials as "Dr." Frist's video diagnosis of Terry Schiavo.

Now what we should have is a forum in which to actually try Merck for general malfeasance in repressing information about Vioxx's side effects and lobbying the FDA to be allowed to do so. Any judgement from such a trial would be forfeited to either the government or to a pool that would be shared by all those deemed by individual trials to have been actually harmed by Vioxx. I would not prejudice a limit on such a proceeding. This would essentially be a class action punitive/standard liability if such a thing were possible.

Full disclosure: My father used to work in product saftey at Merck.