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Winning Big in the Lawsuit Lottery
Who told juries to "send a message"?
[J. F. Kelly, Jr.] 9/1/05

Texas is a big state. Everything seems bigger in Texas, even jury awards. Carol Ernst, whose lawsuit against pharmaceutical giant Merck & Co. blamed Vioxx for her husband’s death in 2001, hit the jackpot recently. A jury awarded her $24.5 million for mental anguish and economic losses and $229 million in punitive damages for a total of over $253 million; no mean amount even by Texas standards. Of course, it will be reduced, probably to somewhere around $26 million. Shucks, for a moment there I thought they were talking real money.

Texas law limits punitive damages in such awards to less than $2 million. One assumes that the jurors were knowledgeable regarding such details but that might be an heroic assumption, given the post-trial remarks of some of them. Several were quoted as saying that they wanted to send Merck a message. Merck stockholders, many of whom are widows also, obviously got some kind of a message because the stock plunged to less than half of its 2001 peak value.

For the sake of full disclosure, let me state that I do not own Merck stock. I am nevertheless troubled by this outrageous award and even more troubled by the apparent mindsets of some of the jurors. I’m sure that Mrs. Ernst would rather have her husband back than the $26 million or even $253 million and if Vioxx had been shown to be responsible for his death and that he was unaware of the possible risks, then she surely should be fairly compensated. Since no value can be placed on a human life, it would seem fair that she receive at least the present value of his projected future earnings and retirement benefits. The idea would be to make her whole, as the lawyers say, to the extent that it is possible under the circumstances, not, however, to make her heirs and lawyers rich also.

Who, in the first place, empowered this jury to “send a message” to the entire pharmaceutical industry? Was that their job? The message that I hear is that the cost of medicine will now rise again and there will be additional delays in bringing new and desperately needed medicines to the market while manufacturers ponder their liabilities and potential exposure.

The jury apparently brushed aside some of the facts and most of the science presented and allowed emotions to take over. This, unfortunately, often happens in a David v. Goliath scenario such as this, pitting an individual against a giant corporation. “I love when a widow from a small town can stand up against one of the largest companies in the entire world”, plaintiff’s folksy lawyer was quoted as saying. He argued that Vioxx must have caused a blood clot that led to a heart attack that caused a fatal arrhythmia or irregular heart beat. But the pathologist who performed Mr. Ernst’s autopsy found no blood clot or evidence of a heart attack and identified arrhythmia as the cause of death. Studies have linked Vioxx to increased risk of heart attack and stroke but not to arrhythmia.

According to several news accounts, some jurors indicated that the science presented during the testimony went right over their heads. One juror was actually quoted as saying, “Whenever Merck was up there, it was like ‘wah, wah, wah’”.

I’m never surprised at anything a juror says because nearly every jury is statistically likely to contain a moron or two. The qualifications for jury duty, after all, are quite modest. An ability to read and write a little will usually do. Counsel are trained to spot and challenge jurors who can actually think objectively and who would likely be resistant to manipulation and appeals to emotion. They even employ experts in jury selection to help.

This was a landmark case because thousands more are expected from wannabe multi-millionaires. How is it that such an important case should be decided by jurors who are incapable of weighing simple facts and understanding a little science? The jury system is widely celebrated as the best method available for determining guilt or innocence. But is it always? Juries have sent thousands of innocent people to prison and even death. Juries have freed murderers and rapists who could afford celebrity defense teams. And juries have created thousands of multi-millionaires by picking the deep pockets of corporations because they wanted to “send a message”, i.e., stick it to big business. Just who do they think actually ends up getting stuck in the form of higher prices? That’s right, you and I. Unless, that is, we are one of the big winners at courthouse casino.

There must be a better way. Betsy McCaughy, a former Lt. Governor of New York, in a Wall Street Journal op-ed, suggests specialized medical courts to try cases such as this. People qualified by experience or training would be empanelled to actually consider the facts and at least work at understanding the science. In such a court, judges would be sufficiently qualified to recognize junk science and keep it of the courtroom. This might make for less sensational trials and fewer of those heart-warming courtroom victory celebrations that make jurors feel that they did something truly good for somebody but then it just might actually result in justice being served. tOR

copyright 2005 J. F. Kelly, Jr.

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