NEW VIOXX VERDICT . . . Yesterday's $47.5 million verdict against Merck is the topic of a long weblog post by the plaintiff's son-in-law, Fredric Woodbridge, a self-described "political conservative"--

A few weeks back, I was in Atlantic City, NJ. I didn't really elaborate why I was there, but I think I can now. My father-in-law sued Merck in NJ (their home state) alleging their product, VIOXX, caused his 2001 heart attack. The trial I attended was the second; the Jury in the first found for Merck.

It's a long and interesting story . . .

There's more about the trial in Woodbridge's full post.

In its brief article about yesterday's verdict, the Wall Street Journal noted that "[t]he jury found the drug maker's handling of Vioxx was 'oppressive, outrageous or malicious.'" Meanwhile, at Point of Law, Merck-defender Ted Frank complains that the jury "consisted mostly of uneducated casino workers," which is how he explains the result. Since the same jury also ruled in favor of Merck against a second plaintiff, I'm not sure Frank's suggestion that the jury was too unsophisticated to appreciate Merck's defense holds up. Frank adds that an "honest appellate court" should rule for Merck on appeal.

There's more about the verdict at The Settlement Channel and the Wall Street Journal's Law Blog. My collected Vioxx posts are here.

Comments

[John Day]

Ted has the knee-jerk defendant response: juries are brilliant when they rule for the defendant and ignorant when they rule for a plaintiff. Ted - please use your God-given talents to come up with better arguments than one formulated by some PR flack in a cubicle on K Street.

[Ted]

Day mischaracterizes my argument, as I was critical of comments made by the first Humeston jury, too.

The fact remains that the likelihood of a juror finding against Merck has been inversely correlated with the education of that juror.

The jury ruled in favor of the second plaintiff sufficiently that his attorney will ask for $1.5 million. The plaintiff might not be happy with the result, but it's a good payday for Lanier if the unconstitutional trial procedure and distorted view of the NJ Consumer Fraud Act is upheld on appeal.

[Tom]

Ted,
I think you mischaracterized your own argument. The only critical comment you made about the jury in the previous Humeston trial was regarding a juror that spoke english as a second language.
As far as the ruling for the second plaintiff. Do you think the jury also came to that verdict because they are uneducated? I wasn't there, I didn't see the trial and can not speak for the jury, but I'd have to say that the chances are just the same that the jury came to their verdict in favor of the second juror because they were educated enough to know that Merck violated the NJ Consumer Fraud Act. And maybe, just maybe they wanted to punish Merck in both cases.

[Ted]

Tom, that's simply not true, see page 6 of part 2 of my 2005 AEI working paper:

A Humeston juror who voted for the defense was not much better: “[Juror Vickie] Heintz also praised Merck lawyer Diane Sullivan for making eye-contact with the jurors and said Humeston’s attorneys were too abrasive. ‘I thought that was a big turnoff,’ she said.”

More problems with the second Humeston verdict. Like I said, an honest appellate court will reverse.

[Jeff]

Why not use jurors adequately trained in the subject matter at hand and eliminate questions of their competence? I could just as easily see this cutting against Merck as helping them. For example, I suspect statisticians could easily address the 18 mo over/under claims made by Merck. And why shouldn't unaffiliated MDs or biochemists be allowed to serve on the jury?

[mythago]

The fact remains that the likelihood of a juror finding against Merck has been inversely correlated with the education of that juror.

Nice passive language--correlated by whom?

Oh, and good job of tipping your hand. "Education" is not a synonym for "intelligent" or "fair" or "open-minded and willing to weigh the evidence in accordance with the law."

[Ted]

"Correlated" is an adjective, not a verb, in the sentence "The fact remains that the likelihood of a juror finding against Merck has been inversely correlated with the education of that juror."

"Education" is not a synonym for "intelligent" or "fair" or "open-minded and willing to weigh the evidence in accordance with the law."

This is absolutely true. Unfortunately, only the first quality is both objectively measurable and readily evident, so it's the only one of the four variables you mention that I can make a firm statement about. (Though one has strong reason to believe in a correlation between education and intelligence, ceteris paribus.)

I'll withhold further statements on the Humeston case until I see the post-trial briefing on both sides.

[mythago]

Unfortunately, only the first quality is both objectively measurable and readily evident

And the least important. You still haven't really explained why it's important, other than perhaps a vague insinuation that education and fairness correlate.

[Matt]

I think he means that with enough education you can be paid very well to be a lobbyist for tort reformers and thus you won't have to serve on juries with the clearly uneducated and unfair.

Plus you can use Latin phrases, which is far more indicative of both intelligence and fairness than using Spanish ones, apparently.