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More on the Humeston Vioxx verdict - retraction

Bumped for update: Note to readers, March 15: On March 14, I wrote a post about problems with the Humeston trial. A plaintiffs' attorney has written in to challenge the factual accuracy of the first and second bullet points. In an abundance of caution, and as part of my commitment to accuracy, I retract these points until I can definitively verify them (or refute them) with trial transcripts or post-trial briefing. I'll rewrite the post in a couple of months; if it differs substantively from my March 14 post, I'll let people know.

Whether or not the particular allegations made for a few hours in the March 14 post were accurate, I still find the Humeston result problematic for multiple reasons that I've discussed in earlier posts, inter alia:

  • NEJM's publicity stunt "Expression of Concern" that was the justification for Judge Higbee throwing out the original defense verdict was not material to the causation question that caused the jury to reject Humeston's claims in 2005. Indeed, it wasn't material, period.

  • The procedural consolidation of multiple cases and improper bifurcation was designed to unfairly prejudice defendants.

  • The plaintiffs' evidence of specific causation was conclusory and not scientifically valid—even if one accepts the questionable claim that Humeston was taking Vioxx that contradicts the documentary evidence that he was not.

  • The $47.5 million damages award for a non-fatal and minor heart attack demonstrates a jury that was swayed by passion and prejudice, rather than reason.

  • The fact of FDA approval without an FDA finding of fraud on the agency should completely preclude the litigation.

The plaintiffs' attorney complains that I did not disclose that I represented Merck in 2005. I have disclosed that on this blog and elsewhere (including the biography on the AEI web site) on multiple occasions; I don't believe that I need to include that disclosure every time I post, but I do so again here. As with all of my posts, I speak for myself, and not for any party or its attorneys.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.