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More on the Humeston verdict

See also yesterday's lengthy post.

1. The tactic of substituting crying for science in expert testimony didn't play well with this jury: "He was being like Liz Taylor," [juror Vickie Heintz said. "When he started crying, I'm like, 'And the Oscar goes to.' " (Thomas Ginsberg, "Jurors fault plaintiff", Philadelphia Inquirer, Nov. 4).

2. The Inquirer story does a better job of conveying a fact not mentioned by other press accounts: the one dissenting juror, Juan Garcia, is an immigrant resort worker for whom English is not his first language. The reporter singles out Garcia's "heavily accented" English; a juror diplomatically complimented Garcia for "having to try harder to understand." But it goes to show that the way for plaintiffs to win these cases is to have more jurors like Garcia and fewer jurors with real-life business experience and education.

3. The Ernst verdict of $253 million was on the front page of newspapers; the Humeston verdict was buried in the business section, something that can only heighten the "Oprah effect" in future cases. Jurors don't have any way of sending a message to plaintiffs as loud as the message they can send to defendants. It'll also be interesting to see if the Humeston jurors get the same financial opportunities as the Ernst jurors.

4. The plaintiffs' bar quickly agreed on a spin if there was a loss, and every news account has a soundbite repeating the false claim that Merck won by "attacking" Humeston rather than on the science—as if noting the other risk factors in Humeston's life (including the stress of learning shortly before his heart attack that postal investigators were accusing Humeston of committing fraud in his disability claim and videotaping him working on his car) isn't scientific.

5. The on-line version of the Wall Street Journal story has changed several times in the last 24 hours, but they have another juror quote:

Juror Marie Kerr, a 51-year-old administrative assistant, said she and other jurors read through the emails while deliberating and felt many of the inflammatory lines were taken out of context.

"We read the emails completely, and not just the part that said 'bastards,' " she said. Ms. Kerr also said she wasn't moved by a Merck document titled "Dodgeball" that [attorney Christopher] Seeger portrayed as a way to teach sales representatives how to avoid questions about heart attacks. "We've all seen games like dodgeball at our work," she said.

There has been much ado about the "Dodgeball Vioxx" document, with mainstream media sources breathlessly repeating plaintiffs' bar claims that it was a "smoking gun"; I finally saw it for the first time a month ago, and was shocked at how innocuous it was—and how irresponsible the press was in failing to report what the document actually said, rather than just the characterizations of a Christopher Seeger or Mark Lanier. More on this document next week.

6. Some reports have analysts questioning why plaintiffs' attorneys are bringing such a weak case first. The answer, according to the Wall Street Journal, is that they don't completely have a choice. In New Jersey, Merck and a plaintiffs' steering committee each pick five cases that they want to try next; each can then strike three of the other party's choices; the case is selected from the remaining four.

7. Merck still loses for winning: they're out the millions of dollars they spent to try the case, plus the person-months of executive time spent preparing for and testifying in depositions or trial.

8. Humeston, who left Idaho for two months to try the case in Atlantic City, told AP that he did win $60 playing the local slot machines. I can't respond, because the multitude of possible punchlines paralyzes me.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.