The Wall Street Journal has an article today discussing today's testimony from Merck researcher Nancy Santanello in the company's first wrongful death suit from Vioxx. Ted covered the trial's opening on overlawyered, here. (For our other past commentary on the Merck Vioxx cases, see July 15 (juror selection); June 22, 24 (Michigan attempt to change laws for Vioxx suits, with commentary); Feb. 18 (FDA panel determines Vioxx safe enough for market); Jan. 27 (Tabarrok and Surowiecki on risk-benefit analysis and FDA/tort law regulation systems); Jan. 5 (links to other writings of leading analysts, including Richard Epstein); Nov. 18 (cross-posting from Medical Progress Today, with comment).)
To me, the key point of emphasis is this: is our system of unpredictable, often unethical, ex post mass tort litigation for pharmaceuticals more likely to encourage aggressive testing for, and open disclosure of, potential drug side effects? My instinct: no. A system that sought to fairly and quickly compensate the legitimately harmed, similar to the federal program for children's vaccines, without costly inquiries into motives, fault, and punitive damages, would likely lead to much more openness, in addition to lower costs and more effective deterrence.