UNHAPPY IN AMERICA? . . . The Vioxx verdict is causing some people to get very creative in their hate mail to me. Consider the following-- 

that sorry peice of shit lawyer mark lanier i hope he knows he is a sorry peice of shit that need 2 rot in hell no one deserves that much money b/c their hushband in shity health that is a senior citizen deserves that much money is a total peice of shit it is b/c of fuck heads like u why health insurance is so high but u dont give a fuck b/c u probably just made 25 million dollars eat shit

Stuff like this is nothing new, I suppose, but I must admit it's a little shocking to see so much hatred against lawyers in black and white, especially when it's showing up in my inbox.

Perhaps the Legal Underground needs to go further underground.

Comments

[Matt]

I think it's the lack of punctuation that is most offensive. It's hard to share outrage when you keep losing your place in the paragraph.

[Jeff]

Right on Matt!

[David Giacalone]

I'm a fuddy-duddy about punctuation, but it's the hate that most offends me. By the way, I see little that is creative in the message in question.

[Eh Nonymous]

maybe it says something about me that i'm used to seeing that kind of creative writing on what we in the field affectionately refer to as The Internets.

Evan: so long as you don't publish your full name, your picture, your city and state of employment, your profession, the name of your firm, or put your voice on the web, or anything else that makes you visible, I can promise you this:

nobody will know who you are or what you do or how to find you.

:)

[Stan]

I think that the emailer may have a point. I mean, no one else in Amercia is allowed to make money either. People are always screaming about credit corporations with predatory practices preying on the poor with a 5000% profit margin, or talking about how unfair it is that starbucks has a profit margin of 2000%, or that, say pharmaceutical companies regularly earn tens of billions a year off of one product or that dozens of companies a year start up with utterly fraudulent products and then automatically bankrupt after taking home a few billion.

What? They don't?

Oh thats right, everyone in America can make money but lawyers.

Oh, and Ted, from the last comments, Covington and a few firms like them may be "exceptional" but their rates are not.

And I am a defense lawyer.

[Ted]

Stan can't name a single credit company with a 5000% profit margin. Starbucks certainly doesn't have a profit margin of 2000%. And if Stan thinks "dozens of companies a year start up with utterly fraudulent products and then automatically bankrupt after taking home a few billion" perhaps he can name a single such start up from 2004. It's not that surprising that someone graduated from law school so economically illiterate, since most law schools require no economics understanding at all, but at least have some humility about it.

Pharmaceuticals may earn tens of billions a year off of one product, but that's the incentive we give them to invest billions of dollars in a product that may have zero sales. Talk about contingent fees!

I haven't complained about the $8 million or so Mark Lanier and his co-counsel has the chance to make from the Ernst case in the unlikely event the judgment isn't entirely thrown out (I'm sure Mrs. Ernst will think she got her money's worth), but I have noted that Lanier's actions in the last few weeks will make the country and the world a poorer place, and perhaps the litigation system shouldn't be structured to create the incentive for lawyers to act so inefficiently. We don't know now, and we won't know when it happens, which of the readers of Evan's blog will be the ones who die prematurely because the miracle drug that would've saved their life wasn't developed for fear of Ernst v. Merck-like consequences, but rest assured that there will be such people who are unknown victims of Mark Lanier's desire to be able to throw an even bigger Christmas party.

[mythago]

Ted, using the same tired "we'll never know and you can't prove me wrong" logic, we'll never know how many people will be saved from a deadly drug because some company thought twice about putting something dangerous on the market. C'mon. Have some respect for the craft, here.

[Ted]

Mythago: Vioxx saves more lives than it takes, but litigation fears drove it from the market. We can thus infer that the drugs that are being driven from the market, in general, save more lives than they take. Ask any HIV-positive person whether the FDA is prone to be under-conservative in approving drugs.

[Stan]

Ted,

Perhaps I should have been more precise in my language. There are hundreds of credit companies that successfully charge around 2-5,000% interest on small payday loans, Starbucks regularly sells a product that has a 10 cent production cost for upwards of three dollars and there are a variety of compannies that purported to sell a variety of miracle supplements from "natural male enhancement" to "miracle weightloss" that have started, been proven fraudulent in the last two years.

It is also interesting that insurance companies, such as say, State Farm, which probably encounter more lawsuits than any other type of company manage to realize net profits of over 5 billion a year on a consistent basis. And let us not forget the other billions tucked into various corners as capital expenditures and other hideaways.

Your schtick is a bit tired. However, I am glad that you have found corporations with enough money left over from defending and losing lawsuits to fund the think tank that pays you to sit around and bitch. Thats really adding value to society.

[Stan]

Ted,

Vioxx does not save anyone's life. It is a common non-steriodal anti-inflammatory that is used in the relief of minor arthritic pain. It isn't all that much more effective than ibuprofen. Ibuprofen does not even have the same blood thnning capabilities of asprin, though it does kill about 17,000 people a year from gastrointestinal bleeding.

Nice over-glorfication though.

[John Day]

Vioxx doesn't and never was intended to save lives. It was intended to relieve arthritic pain. Of course, it is important that we have drugs that relieve pain - but to suggest that Vioxx "saves lives" is a big stretch. And, by the way, there is a real debate whether Vioxx relieves pain better than NSAIDs. To be sure, people with GI problems cannot take NSAIDs and perhaps Vioxx is a good alternative for them, but it is only a good alternative if they are made aware of all of the material risks and make the decision to assume those risks. In my mind, death is a material risk, particularly at the rate it was occurring with Vioxx.

Second, it is obvious that Ted does not trust jurors. Like many of his ilk, Ted believes that jurors are great when the defense wins and ignorant when the defense loses. Or maybe he believes that jurors are always ignorant and when they get it right (i.e. when the defense wins) it is mere happenstance.

Evan, I think you should be honored to have someone like Ted - who is so smart, indeed, smarter than everyone else in the world - read and comment on your blog. What an honor!

Then again, I guess Ted is smarter than we are. He has actually managed to get a job where he gets paid to blog!

[Evan]

John: I would like a hundred Teds to be reading and commenting on this weblog. When weblogs attract only those readers who agree with the position of the person writing the posts, they tend to get a little stale. I'm thinking of political weblogs mostly, but it can be true of legal weblogs too.

I agree with you that for Ted to imply that "Vioxx saves lives" is unnecessary overstatement. That overstatement was followed by this: "Ask any HIV-positive person whether the FDA is prone to be under-conservative in approving drugs." That's another stretch, blaming the country's tort system for the FDA's attitude towards approval of HIV medications. Maybe more explanation is needed.

[Ted]

Evan: My point is that we already have an over-conservative FDA protecting us from dangerous drugs and some beneficial drugs, and the effect of the tort system is merely to deter the research and development of other beneficial drugs.

As Stan notes, pain relievers other than COX-2 inhibitors kill thousands of people a year, so I don't think my statement that Vioxx, which does not have these GI side effects, was a net saver of lives, is an overglorification.

I think juries get it right the vast majority of the time, but the litigation system gives the outlier juries that make mistakes too much power to override the results of the vast majority of juries with huge damage awards. If juries get it right 95% of the time, but the other 5% makes a ten-fold or hundred-fold error in the size of damages, the net effect is negative. Such regulation by lottery litigation is the opposite of democracy. Even aside from its error in liability determination (albeit an error induced by legal errors made by the court and encouraged by the plaintiffs' attorneys), the Ernst jury made a 100- to 300-fold error in calculating damages. Previous tort reform will dampen that to a 10- to 30-fold error, but it's still a big error that could stand to be corrected by other reform.

I don't get paid to blog. My blogging helped get me a job I wanted, to be sure, and I blog to promote my ideas and my name, because I enjoy it, and because I think it helps me brainstorm, but my salary wouldn't drop one penny if I stopped blogging.

Credit companies don't charge 2000-5000% interest. A payday loan may have processing fees (which reflect real processing expenses) that make it a poor deal for the vast majority of people. For some people, who have done a poor job of saving, and are facing far greater late-fee expenses than would be incurred by paying payday loan processing fees, payday loans make economic sense, and the paternalism that would sue them out of business only makes these poor people worse off. One would note that if there wasn't so much litigation over payday loans raising the cost of them, there would be more market competition to deliver payday loans more efficiently, and as it is, we even see Wal-Mart (yes, evil Wal-Mart) entering the market and undercutting other payday loan companies.

Starbucks' product does not have a 10 cent production cost or a 3000% profit margin, as anyone could readily determine by checking its financial statements, which show a gross profit margin of under 60% before (quite extensive) operating expenses and EBITDA. But if you think Starbucks profit margin is really 3000%, what are you doing practicing law (which you clearly despise and have no respect for from your other posts) rather than selling coffee?

State Farm has had a $5 billion profit once. Not only does this contradict your new assertion, but I fail to see what that has to do with your original screed.

Tort reform saves lives, and if my think-tank work makes a difference in that area, I'll have no regrets about my contribution to society even above and beyond the 1.5 billion dollars or so of shareholder value I've preserved through litigation decisions I made or helped make in bet-the-company cases when I was a full-time practicing attorney.

For the record, I'll note that Evan's anonymous anti-lawyer correspondent in the post is an illiterate idiot, but I can easily see why he would choose to address the illiterate idiots rather than the more nuanced discussion at Point of Law.

[Evan]

Ted: I think the anti-lawyer correspondent chose me rather than you because when he googled "mark lanier," I had a hell of a lot more juice than Point of Law.

Hand it to the illiterate idiots--we rule! (I'll admit for the record, however, that you are very nuanced.)

[Evan]

Ted: And I should add, if you want to move some of your nuance over to this weblog for a day--not all of us are illiterate idiots, to use your finely-nuanced term once again--I think it would be great if you'd do a Vioxx-related guest post on Wednesday, or any Wednesday, actually. Possible topics--

(a) On Point of Law, you wrote, "the [Vioxx] lawsuit deterred the research and development of life-saving drugs." That's something that lots of people have been saying. Mass torts against the pharmaceutical industry are nothing new, however, and I'd like to see some more evidence that your point is true, as well as a discussion of why it would make sense as a matter of public policy to hold drug companies to a lesser standard than other products-liability defendants--a lesser standard that might cause some ghastly, horrible deaths, as happened in the case of diet drugs and primary pulmonary hypertension--in order to allow drug companies to research the next billion-dollar blockbuster more inexpensively? (Wow, that's a loaded question. Feel free to make it less loaded.)

(b) Is bankruptcy really a possibility for Merck? I think people are throwing that around in quotes for newspaper articles just to get readers agitated against lawyers. What do you think?

(c) You've written about standards of causation required to prove up a case against a pharmaceutical company. Does it make sense to require an lesser standard in a pharmaceutical case when the mechanism of action is unknown, as, for example, in the case of cigarette smoking and cancer or Vioxx and clotting? Why or why not?

(d) In your post at Point of Law, you wrote that Vioxx was a "life-saving drug," and that people would be better off it they still had it as a treatment option. But what about other NSAIDs? Can nothing else replace the absence of Vioxx?

(e) There hasn't been a lot of very good commentary about the epidemiological evidence about the association, if any, between the use of Vioxx and clotting-related events. All I see is lots of regurgitation about the Merck view that the studies prove there is no association until at least 18 months of use, which is a very hard view to defend. Would you care to delve some into the science of epidemiology and apply it to the many Vioxx studies that are now available? (Actually, I want to do this myself, but I'll let you do it here first if you want, which will cause me to Spring-into-Action!)

Those are the topics that come immediately to mind. I'd really like a guest post from you or someone on the other side of the divide about one of these topics, or something similar.

[Mike]

Yes, yes, I second Evan's motion for a guest post.

[Matt]

I don't know how one can have a "discussion" at Point of Law. It doesn't allow comments because it's propaganda. Good propaganda doesn't give a forum for dissent.

[Ted]

Evan, please note that I wasn't calling you an illiterate idiot. The "he" in "he would choose to address the illiterate idiots" was a reference to you, Evan, not your correspondent, whose gender I do not know (but can probably guess accurately), and thus should have read "Evan would choose to address the illiterate idiots," as in, with so much intelligent criticism in the newspapers and Inter-web about the Ernst case, why shoot fish in the barrel? I'm a tad disappointed to learn that you think so little of me that your first assumption was that my rhetoric had been reduced to calling you a name.

Let that be a lesson to all of us (me included) of the danger of pronoun reference ambiguity.

In response to your five-part query:

a & c) AEI will be holding a panel discussion on these very questions September 6 or 7, and I'll have more details when I have more details. Jack Calfee has a good editorial on (c) in today's New York Sun, available from the front page of the Liability Project site.

b) The only person I've seen mention bankruptcy is Bainbridge in a blog post, though I suppose one can infer it from Richard Epstein's editorial. I think Merck will win Ernst v. Merck in the long run, but it's an expensive public-relations defeat in the short-term, especially once the jurors realize their life-long dream of being on Oprah. If Ernst and similar cases are allowed to stand, then bankruptcy is a plausible long-run outcome, because plaintiffs' attorneys are creative in squeezing every last penny out of a mass tort even if they have to recruit plaintiffs with no health problems to do it, and in this case, every last penny is the combined assets of Merck.

d) Walter has a good post on this topic at Overlawyered today.

e) I don't think you've accurately stated the Merck position, which I understand to be the eminently more reasonable, and correct, proposition that there are no studies that show a statistically significant association between CV events and Vioxx use of less than eighteen months. Cf. also this post on Drugwonks.

Matt, I've experimented with comments at Overlawyered, and they quickly fill up with trolls and spam. I'm happy there are people like Evan who are willing to maintain comment boards, and have done a pretty good job of keeping it clear from trolls and spam (though that's easier to do, since Evan has a smaller and less general-interest readership), but blogging is a labor of love for me, and moderating comment-boards just isn't something I want to spend time doing. Even the Volokh boards have degenerated. But if you or someone you know would like to be a full-time unpaid volunteer for running a comment-board, let me know, and I'll put you in touch with the right people at POL. Until then, in the words of David Siffry, if you want to make a comment, start your own blog.

[Ted]

Also, Matt's claim that there's no dissent on Point of Law is simply untrue. When Professor Michael Saks objected to something I wrote about one of his op-eds, I printed in full a response he wrote that was four times longer than my original post.

[Tom]

Well, well, well. As soon as I heard the amount of this award, I knew there would be a lively debate about tort reform. As I see it the punitive damages in this case were so high because the jury wanted to send a message to Merck. The message was not about manufacturing a bad drug. Rather that Merck should have been more honest and forthcoming about the adverse effects that these drugs were having. Simply put the jurors wanted to punish Merck for being too greedy. Unfortunately, we (consumers) have to rely on these drug companies to be honest and tell us when a drug produces a bad side effect. In contrast to your earlier statement about how the FDA is prone to be under-conservative in approving drugs. While some drug companies could spend years and years to get their drug to market, there are other companies that are able to fast track their drugs to market. The real problem however is that there is almost no monitoring of the safety of a drug after is has been approved. I can tell you this from first hand knowledge. I contacted a representative of the FDA a few months ago. I offered to send them 17,000 adverse reaction reports that were submitted to my website. Their response? You should send them to the manufacurers of those drugs, they will review them and then pass that information on to us if it is necessary. The FDA had no interest at all in the information I had.
If Merck had come forward and provided the information they had about Vioxx at the earliest stages, no one would have a case, but they put profits ahead of people. I would assume that this same thing happens with almost any drug that is on the market. This verdict is meant to scare the drug companies that have a product on the market to be honest about their motives and their reporting, not the companies that are trying to get approval.

[Evan]

Ted: Hmm, not only are you nuanced, but you're ambiguous too. It's good to know, however, that you don't think I'm an "illiterate idiot"--although I figured you were joking, or attempting to joke, and I didn't take offense, and even invited you to put your thoughts on the main page of the weblog in a guest post. So don't be disappointed with me, and rest assured that I don't think little of you, or whatever it is you're worried about. I even said in this very comment thread that I wish there were a hundred Ted Franks reading this weblog. In fact (I hope you don't blush easily), you even remind me of some of my own tort-reform-minded friends, except that you're a lot smarter than some of them, and better-looking than all of them.

I know it gets a little heated around here sometimes, but it is just a weblog, remember, with a readership that is, as you correctly point out, smaller than at Overlawyered. So I try not to get too bent out of shape about what people write in the comments, as long as they refrain from personal attacks against other individual lawyers and judges. I think (hope) that your weblogging philosophy is somewhat similar. Meanwhile, I really do appreciate that you add your comments, which forces me to take extra care about what I write, knowing that you'll be reading.

[Matt]

Ted,

Will I receive the same salary as you for helping with POL?

[Evan]

Tom: Well put.

Ted: Here's speculation about a Merck bankruptcy in a Boston Globe article--

Boston attorney Thomas E. Peisch called the amount of the award ''insane." Peisch predicted the verdict, if it stands, could be fatal for Merck since it will likely spur additional lawsuits. That happened in previous mass tort cases -- such as those involving asbestos and silicosis -- which resulted in large jury awards. ''Merck has got to think seriously now about trying to get these cases settled, and I would say they've also got to think seriously about bankruptcy," Peisch said.

[The Sardonic Lawyer]

Hmm, so the sky is falling in light of what will ultimately be a $29M award. This from a company with market capitalization in excess of $675 _billion_ according to the most current information TSL can get his hands on. I've posted some thoughts on the Vioxx matter in my blog, for those who are interested, and no doubt I will have a few more choice words in the coming days. Regardless, here's a summary of my thoughts, in no particular order:

(1) The award on appeal will ultimately work out to approximately 0.4% of Merck's total worth.
(2) Merck's profits for the first half of 2005 were $2.09 billion, down from $3.39 billion for the same period in 2004, on revenues of $10.83 billion. Good work if you can get it.
(3) Based at least in part on the foregoing numbers, I think Merck would have a very difficult time seeking bankruptcy protection with a straight face. Sure, they may try, but given capitalization, Merck's continuing profitability and the profitability of the pharmaceutical industry generally, I think it would probably be an uphill battle.
(4) Those who think holding a pharmaceutical manufacturer liable for contributing to the deaths of individuals estimated in the thousands, when the manufacturer could have and should have known there was a problem, should be kicked in the groin.
(5) Those who decry the award of punitive damages on grounds that an individual may receive a windfall, and use this as justification for "tort reform" that eviscerates protection of the consumer in favor of benefitting those who don't need or deserve additional safeguards (i.e., pharmaceutical companies), should be repeatedly kicked in the groin until either unconsciousness or vomiting is induced.

[Jeff]

Merck's market cap is $61 billion, not $675 billion.