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Thinking like non-lawyers

I'm honored that law professors Steven J. Johansen (Lewis & Clark) and Ian Gallagher (Syracuse) think that my analysis of Ernst v. Merck, the infamous (and later-reversed) $253 million Vioxx verdict, could have made a material difference if it had been adopted as part of the defense closing argument:

This verdict is bad news for all of us, and some of us will die prematurely because the lawsuit deterred the research and development of life-saving drugs.

And Vioxx was one such life-saving drug. The painkillers that it replaced (and is now replaced by) cause their own health problems, and current medical thinking is that, for at least some people, Vioxx would be a safer as well as a more effective pain-killer than aspirin, despite what we now know to be the latter's better cardioprotective profile. But Merck can't collect $26 million from each person whose life they save, even if it were possible to point to a particular Alvy Singer of Hypothetical City, Iowa, who didn't die of aspirin-related complications because he was taking Vioxx.

But I'm sad to say that I think they're wrong. Even if a judge permitted that sort of public-policy argument in a closing argument, it's a public policy argument, one aimed at lawmakers and judges, rather than finders of fact. It doesn't tell juries whether or not to find liability. Perhaps it's an argument against punitive damages, but a jury that already awarded such an unreasonably punitive sum of "compensatory" damages wasn't going to take its foot off the gas when given the opportunity to give a big punitive-damages award and be on Oprah just because it would be bad public policy. Even aside from the fact that Mark Lanier would've rebutted the argument by making up a new story that he's okay with Merck selling the drug if only they had "told the truth" (i.e., had perfect predictive powers about what future scientific studies would show about Vioxx's health risks), which is the same crocodile tears he cried when he was on "Stossel" a couple of weeks ago.

Merck didn't lose Ernst because a Williams & Connolly attorney didn't do a good job of storytelling; Merck lost because the jury was allowed to hear inadmissible evidence from an expert making an impermissible conclusory judgment without scientific basis that permitted the jury to come to the incorrect conclusion that the plaintiff had proved causation. (And that isn't even half of the unfair advantage plaintiffs had because of slanted evidentiary rulings at trial, an uncovered subject meriting its own post one day.)

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.