VIOXX OVERLOAD . . . If all the references to Vioxx on this weblog are becoming tedious, I apologize. Yet I wanted to point out a post called "Blame the Jury," from GregsOpinion.com, which isn't really about blaming the jury, and which does a nice job of pointing out the flaws in Professor Ribstein's post "The Merck Verdict."

As for blaming the jury, as Professor Bainbridge and Professor Ribstein are doing based on an article in the Wall Street Journal--well, it's awfully easy to say the jury discounted the science in reaching its verdict in the first Vioxx trial when you're writing as someone who doesn't agree with the verdict. Professor Ribstein bemoans the fact that the jury agreed on causation in just an hour, but forgets that jurors are not supposed to be scientists themselves and must instead rely on the testimony of witnesses. Likewise, Professor Bainbridge says the jury didn't try to understand the science, while leaving out that plaintiffs' expert witnesses explained how the use of Vioxx contributed to Robert Ernst's death. The jurors chose this explanation over the one presented by the defense. Moreover, the explanation for Ernst's death offered by the plaintiff's experts was not a radical one, and was there for all to see even before the plaintiff's experts even testified--see, for example, my post Vioxx and Arrhythmias, published here July 19 and based on other news accounts. Far from ignoring the science, the jurors actually listened to the evidence.

Nonetheless, the jury is still getting dumped on by those who weren't at the trial and didn't listen to the evidence. If the naysayers are going to criticize, fine, but they should do it without blinders that call their own credibility into question.

Meanwhile, few webloggers are criticizing Merck's lawyers, who would seem to be another easy target for criticism. If you think I'm going to do it, you're wrong--I'm unfortunately too humble about my own abilities as a trial lawyer to call another lawyer's performance into question publicly, and besides, I have to work with Merck's lawyers every day. But when a juror told the Wall Street Journal, "Whenever Merck was up there, it was like wah, wah, wah . . . We didn't know what the heck they were talking about," there is another conclusion to draw besides the knee-jerk reaction of saying the jury was too stupid to understand Merck's lawyers. Can you figure out what it is?

My collected Vioxx posts are here. A hint for answering the question posed just above is here.

UPDATE . . . Texas trial lawyer Beldar of BeldarBlog has some interesting comments about the verdict and blaming the defense lawyers in his post, "The First Vioxx Verdict." And I also liked the comment that he left to the Bainbridge post I linked to above.

UPDATE II . . . If you are (a) someone who was harmed by Vioxx or (b) a lawyer who wants to refer your Vioxx cases to a highly-competent team of mass-tort lawyers, look here.

Comments

[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."

[Evan]

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

[mythago]

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.

[Mike]

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.

[mythago]

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)