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John Day

Great post, Evan. Defendants and their apologists always blame the jury when things go bad. Here was my take on what they would have said had Merck won, as posted yesterday at www.dayontorts.com.

August 22, 2005

What If Merck Had Won?

This represents my best guess of what the tort reformers would have wrote if Merck had won the Texas Vioxx trial:

"Well, the greedy plaintiff's lawyers did their best but they could not fool the good people of Texas. Mark Lanier, who is supposed to be a star of the plaintiff's bar, was rumored by the liberal media to be winning the case, which only shows how out-of-touch they are with mainstream America. Real people can see right through a huckster like Lanier, who apparently left his alleged trial advocacy skills in his plane.

Sooner or later the socialists who have (temporarily) captured the American media will learn that jurors will not fall for the sympathy plays used by Lanier and his ilk. No - jurors listen to and evaluate the facts. They listen to scientific experts and disregard those who create new "science" for the purposes of litigation. The American people are not dummies, notwithstanding the pabulum that they have been served by a media that assumes they are ignorant.

Reasonable people handed such a defeat would fold up their tents, go home and lick their wounds. But not plaintiffs' lawyers - they will continue to try to suck the blood out of Merck in the hope that they can extort some small settlement and then declare victory. That is the way the mass tort industry works - threaten, run up the expenses, settle cheap, and laugh all of the way to the bank.

In the meantime, the economic well-being of these companies is threatened, and they are left to fight frivolous lawsuits rather than develop new drugs which will save lives. The cost to the economy is enormous, and only God knows how many lives greedy trial lawyers take every year by forcing good companies to defend false claims filed by these hucksters.

This is why liberal Democrats in the Senate must be forced out of office. They are the ones standing in the way of reform. They allow junk science to support frivilous claims, all of which lines the pockets of their political supporter, the trial bar.

The people in Texas should be proud of the jury in the Vioxx case. They listened to the judge, listened to the evidence, and did justice notwithstanding the blatant appeals to sympathy by a lawyer trying to hit it big. The people who really understand heart and soul of America are not at all surprised by this result. Indeed, the only people who are truly surprised by the verdict are trial lawyers, who seem to think that the public will continue to buy their defective work product."


John: Thanks for the comment. I saw that post of yours and liked it a lot. So true!


So true, John.

I'm also very hesitant to Monday-morning quarterback other lawyers' strategy choices, but come on--badgering the sympathetic widow for an hour and a half? What was up with that?

John Day

Concerning the strategy decisons of other lawyers and the presentation of evidence.

It is difficult to present complicated evidence in a way that it can be understood by people who are unfamiliar with the terms, much less the subject matter.

Then again, that is what trial lawyers do.

My guess is that Merck's lawyers will re-group and figure out how to present the evidence more clearly next time around.


Clay Conrad had an apropos post here.

Eh Nonymous

mythago: as someone recently noted, badgering a witness about unrelated and unknown-to-her matters may have backfired. But, it was surely not the kind of chancy strategy which was embarked on alone by that lawyer. She's (was it a she?) been scapegoated by an ignorant press. But it was surely a tactical and strategic decision, much like the ones discussed in the (excellent) comments at Prof. B's post. Not mine, mine is so-so. :) The ones by Beldar and/or John and/or others.


But, it was surely not the kind of chancy strategy which was embarked on alone by that lawyer.

Oh, I'm not blaming that lawyer alone (it was a she, as I recall). But still. WTF? (yes, that's a technical legal term)

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