December 08, 2005

Over Merck's objections, Judge Higbee has consolidated the next two trials in the New Jersey proceedings. The two plaintiffs are both from New Jersey: 76-year-old John McDarby took Vioxx for four years, and 59-year-old Thomas Cona took Vioxx for twenty-two months. Both survived their heart attacks. Merck protests that the consolidation will muddy individualized issues of causation. The two heart attacks took place at different times, and Merck had different knowledge at different times. (Lisa Brennan, "Over Merck Objections, N.J. Judge Combines Vioxx Cases for Trials", New Jersey Law Journal, Dec. 2).

Why would the parties fight so hard over having multiple parties in the same trial? Perhaps because juries really do evaluate cases with multiple plaintiffs differently than cases with a single plaintiff. A study of asbestos trials by UCSD economics professor Michelle J. White found consolidated trials of two or three plaintiffs were 15 percent more likely to win compensatory damages than was an individual plaintiff. Plaintiffs in consolidated trials were 11 percent more likely to win punitive damages, and 54 percent more likely in bifurcated trials, than were individual plaintiffs, though punitive damages are less likely to be an issue in New Jersey because of the strict burden of proof in that state. The fact that a simple procedural machination can raise plaintiffs' expected returns by as much as 50% raises fundamental questions about the fairness of consolidations. (A similar problem occurs in criminal trials.) White discussed her paper at a 2002 AEI event.