Results matching “humeston”

Isaac has already mentioned and linked to the motion, but it's worth noting that we were pointing out the plaintiff-friendly rulings of Judge Higbee back during the Vioxx litigation. E.g., October 2005, December 2005, April 2006, April 2006, August 2006, March 2007.

In the long run, it didn't make much of a difference in the results (Merck settled the Vioxx cases for a nuisance sum, and New Jersey appellate courts reversed the more ludicrous judicial rulings), but the good publicity from enormous jury verdicts helped attract thousands of new plaintiffs hoping for jackpot justice, ultimately adding to Merck's legal bills and the nuisance value of the set of cases. Hoffman-La Roche can't move to disqualify a judge just because the vast majority of her legal errors and rulings on discretionary questions favor plaintiffs, but Judge Higbee's lack of discretion in her extrajudicial comments may provide the hook they need to get fair trials in the future.

It's also worth noting that the Accutane cases are meritless. Yet oddly, when the pundits talk of a "War on Science," it's always in reference to a politic answer a Senator Rubio gives that acknowledges the religious faith of his constituents (and the vast majority of Americans), rather than junk-science litigation like this that actually interferes with science.

NPR reporter Snigdha Prakash has written a book on the Vioxx litigation, entitled All the Justice Money Can Buy: Corporate Greed on Trial.

Given that Merck has essentially been vindicated by the results of the Vioxx litigation, the title suggests extraordinary bias. (The book's description makes clear that the author was pretty much embedded on the Mark Lanier trial team.) I look forward to flipping through the book to see if the author took any opportunity to ask obvious skeptical questions of Lanier's tactics, but I can guess the answer. The index does not cite me or Richard Epstein.

The book does have the reveal (page 285) that the lawyers for the Humestons, who won a $47.5 million verdict, advised them to accept a settlement offer from Merck for $1 million, which shows the value that the plaintiffs' lawyers put on their own most successful cases if they had to defend them in appellate court, and vindicates my skepticism of the result in the face of criticism from plaintiffs' attorneys. The Humestons did settle for a confidential amount, and criticize their lawyers in the book.

The latest issue of Journal of the American Medical Association publishes two pieces by plaintiffs'-side experts (including the infamous Dr. David Egilman (e.g., Oct. 2007; Dec. 2005; Jul. 2005)) slamming Merck over Vioxx studies. Ross/Hill/Egilman/Krumholz accuse scientists of ghostwriting studies for Merck, but as Merck and Reuters note, Egilman et al. are smearing dozens of scientists without factual basis. As one tells the Washington Post:

• Judge Fallon denied the motion of Florida plaintiffs to expedite a hearing on their inclusion into a settlement when they did not even bring suit (Jan. 30). Merck and the PSC are required to respond Feb. 15, and the hearing will be Feb. 21, where one can expect the motion to be denied.

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.

(Bumping March 12 3:41 PM post to reflect punitive damages verdict and additional press coverage.)

[New Jersey Law Journal; Bloomberg; AP/Forbes; Reuters; Reuters; WSJ Law Blog]

Both the liability determination and the $20 million "compensatory" damages verdict are divorced from reality—and the jury has yet to assess punitive damages after a finding that Merck's actions were "willful and reckless." (Later in the evening, the jury also awarded $27.5 million in punitives.) Humeston took Vioxx for two months (along with large doses of ibuprofen), was overweight, had high blood pressure and cholesterol, but blamed on Vioxx the heart attack he had moments after receiving a letter from the Postal Service suggesting that his disability claim was fraudulent. There was little evidence that the heart attack adversely affected his life relative to other health conditions he had. But this jury, unlike the first Humeston jury, consisted mostly of uneducated casino workers. Earlier Humeston v. Merck coverage, and we discussed the first trial verdict on November 3 and November 4, 2005. An honest appellate court will reinstate the first verdict, as Judge Higbee had no legitimate basis for overturning that jury determination. This is the fifth plaintiffs' jury verdict out of twenty-nine Vioxx cases that had been ready for trial (not including two pending mistrials), but with millions of dollars awarded each time, plaintiffs' attorneys can keep batting below the Mendoza line and make a sizable profit—especially when a couple of defense product liability verdicts in New Jersey from out-of-state plaintiffs also resulted in "consumer fraud" plaintiffs' wins under a strange view of New Jersey choice-of-law and consumer fraud law that entitled plaintiffs to seven digits of attorneys' fees for winning $45 or so at trial.

The miscarriage of justice is so routine that most papers are covering the story with only a paragraph or two.

Merck announced it would appeal.

The California court declared a mistrial after the jury froze at 7-5 in favor of Merck. Retrial will be in April. (Edvard Pettersson, "Merck Gets a Mistrial in Los Angeles Vioxx Cases", Bloomberg, Jan. 18). Merck writes:

As of September 30, 2006, the claims related to more than 3,000 alleged VIOXX users have been dismissed before being scheduled for trial. Of those, more than 1,100 were dismissed with prejudice either by plaintiffs themselves or by judges, meaning they cannot be filed again. Another 2,000 were dismissed without prejudice.

Of the 28 plaintiffs whose claims have been scheduled for trial, including the two plaintiffs in this trial, the claims of six were dismissed, the claims of seven were withdrawn from the trial calendar by plaintiffs, juries have decided in Merck's favor nine times and in plaintiffs� favor four times, and there have been three mistrials (one of which has since been retried to a verdict). A state judge set aside one of the nine Merck verdicts.

As for the four plaintiffs� verdicts, Merck already has filed an appeal or sought judicial review in each of those cases, and in one of those four, a federal judge overturned the damage award shortly after trial.

A ten-person jury, including four casino workers, has been selected for the consolidated New Jersey trial of plaintiffs Humeston and Hermans (Jan. 17).

The court has reduced the number of plaintiffs from four (Jan. 12) to two, though that doesn't change the fact that they have different individualized circumstances that mean consolidating their cases is utterly inappropriate. Even more confusing for the jury, the two are from different states, and will have different legal standards for liability and punitive damages.

One is Frederick Humeston of Idaho, who we've seen before (Aug. 17 and links therein), most notably for having a heart attack immediately after being notified by his employer that a private investigator had videotaped him faking a disability, and then blaming it on his intermittent Vioxx use over two months. The NEJM editorial that caused Judge Higbee to throw out his case hasn't appeared to influence any other juries, so this appears to be purely a second bite at the apple with a different jury—though, if Higbee bifurcates the trial as planned, Humeston could be helped. Humeston will also benefit from learning which acting techniques served his experts poorly in the last trial (Nov. 4, 2005). Diane Sullivan, who clashed with Judge Higbee in the previous Humeston trial, will reprise her role as lead counsel.

Merck comments on the second plaintiff, the sister of the late Brian M. Hermans:

In one case, Kathleen Hermans Messerschmidt alleges that her brother, Brian Hermans of Waupaca, Wisconsin, suffered a fatal heart attack at or around September 15, 2002 after allegedly taking VIOXX for approximately 19 months. An autopsy showed that Mr. Hermans, who was 44 years old at the time of his death, had an enlarged heart and multi-vessel coronary artery disease. The evidence also will show that Mr. Hermans had a strong family history of heart disease and early death. In addition, the evidence will show he had untreated high cholesterol and high blood pressure. Further, records show that Mr. Hermans died from an arrhythmia and had methadone and fluoxetine in his system at the time of death.

Opening arguments are scheduled for January 22.

You might not know that there have been twenty Vioxx cases scheduled for trial by now—nearly every press account scorecard lists only the ten that have gone to verdict or those ten minus the Humeston defense verdict that was mysteriously overturned by Judge Higbee. The real total is 16-4: five cases were dismissed with prejudice by Judge Fallon, and five more were withdrawn by plaintiffs' attorneys before they could result in losses, six resulted in defense jury verdicts, and four in plaintiff jury verdicts, though all of those have strong appellate grounds for, among other things, violations of state and federal expert testimony standards. The West Virginia Record has an excellent interview with Merck defense attorney Ted Mayer. ("Vioxx cases not all big payoffs," Nov. 8).

Today is September 30, 2006, two years to the day when Merck withdrew Vioxx from the market because of concerns of increased heart attack risk; we told you back in December that, because the statute of limitations in many states was two years, one could expect the number of Vioxx suits to skyrocket around now, and that prediction is coming true. (Peter Loftus, "Number of Vioxx-Related Lawsuits Tops 22,000 as Key Deadline Nears", Wall Street Journal, Sep. 29; AP, Sep. 29).

The forum-shopping decision seems to have led to New Jersey, where Judge Higbee has made a series of plaintiff-friendly rulings, including the questionable decision to throw out the Humeston defense verdict. The number of cases there has nearly doubled to over 14,000, while the number of federal cases is up only 15% to 6,535. Mark Lanier's October threat to file 18,000 cases across the country in multiple state courts to try ten at a time doesn't seem to have been executed; will the press remember this bluff in future fawning press coverage?

There are another 5800 plaintiffs out there with agreements with Merck to extend the statute of limitations. The Wall Street Journal repeats the mistake of neglecting to mention how many of the 22,000 lawsuits have multiple plaintiffs; if ratios have been consistent across different jurisdictions, those 22,000 lawsuits represent about 37,000 plaintiff groups, and still do not include the rush to the courthouse in the last week or two.

Of course, not all of these cases will be tried. AP quotes Merck defense attorney Ted Mayer as saying 328 federal cases have been dismissed (though doesn't follow up to determine if those have been dismissed with prejudice).

1. In a case previously scheduled to begin September 11 in Atlantic City, Patricia Hatch had claimed that her husband (who had no record of ever purchasing Vioxx) had received two years of free samples of Vioxx before dying of a heart attack. (See also Aug. 8.) Hatch decided to dismiss her case with prejudice.

2. In July, a Texas state court dismissed the Vioxx lawsuit brought by James Miller II on the principle of judicial estoppel: Miller had failed to list his claim against Merck amongst his assets when he had filed for bankruptcy. (But see Biesek v. Soo Line (7th Cir. 2006).)

Out of 22 cases resolved at the trial level to date, Merck has won thirteen by dismissal with prejudice, won four more at trial, and lost four at trial; a 22nd case, Humeston, was won by Merck at trial, but Judge Higbee granted a new trial (Aug. 17). (And one of the product liability jury wins still required Merck to pay a plaintiff $15 plus attorneys' fees on a consumer fraud theory.) About three hundred more cases have been dismissed without prejudice, and it's unclear how many of those plaintiffs will choose to refile within the statute of limitations.

For many potential plaintiffs in many states, the statute of limitations will have been considered to start ticking on September 30, 2004, and expire on September 30, 2006; we are likely to see one last burst of filings in the next five weeks.

1. The jury in the Barnett case was asked both if Merck should be held strictly liable for failure to warn and causing Barnett's heart attack, and if Merck was negligent in failing to warn and causing Barnett's heart attack. Interestingly, the jury answered the first question "No," and the second question, "Yes," which is logically inconsistent. While it's possible to not be negligent, yet held strictly liable, it's impossible to both be negligent but not strictly liable.

Gerald Barnett received $50 million in "compensatory" damages, with the jury to return to the question of punitive damages. Barnett had high blood cholesterol, a family history of cardiac problems, and documented cardiovascular disease before he ever took Vioxx. The verdict, if reduced to judgment, will set up a defense challenge to Judge Fallon's questionable Daubert rulings, which we noted on Nov. 23. Merck has won seven out of eleven cases so far, and five out of nine trials—at least, that was the score before Judge Higbee's bombshell today. (Heather Won Tesoriero, "Merck Failed to Warn Doctors About Vioxx's Risk, Jury Says", Wall Street Journal, Aug. 17).

Update, 1:42 PM. The jury awards $1 million in punitive damages. (More Point of Law coverage on the Barnett case.) In addition, Peter Lattman is reporting that Judge Higbee (with remarkably coincidental timing) has ordered a new trial in the Humeston case that Merck won last year (Nov. 3, Nov. 4). Readers will recall that we have been skeptical of the claims that Judge Higbee's courtroom in New Jersey provides Merck with "home court advantage" (e.g., Apr. 6, Oct. 7).

Update, 3:49 PM: Forbes' Matthew Herper is reporting that Higbee's decision was based on NEJM's editorials, which we discussed on Feb. 22, Feb. 27, Jun. 28, Feb. 14; Jan. 8; Dec. 16; Dec. 10; and Dec. 8. (Update to the update: Peter Lattman excerpts from the ruling, which appears to come from the bench.)

One thing we haven't yet mentioned about the NEJM editorial was the Wall Street Journal May 15 expose confirming our earlier suspicion that the timing and content of the editorial was politically, rather than scientifically, motivated:

Professor Elizabeth Nowicki wonders (via Childs) whether a corporate apology (and agreements to settle) are something that is part of a fiduciary duty of a director.

Nowicki's analysis presupposes that Merck has done something wrong other than to be wrong in hindsight, and there doesn't appear to be a case that that is true. (Nor is it the job of the corporate litigator to "'clear' the corporate name" unless that is the primary goal of the corporate client.) But, unfortunately, under the current legal status quo, even if Merck had done something wrong, and was inclined to settle the cases, the scope of corruption in the plaintiffs' bar makes that impossible. In every extra-large scale mass tort settlement to date, the amount of plaintiff fraud has been tremendous, often constituting a majority of the claims. Early indications are that Vioxx is no different. In the Garza, Cona, Rogers, Humeston, and recently voluntarily dismissed federal cases, there were credible allegations that the plaintiff exaggerated (or even faked) Vioxx usage; each of the other plaintiffs in concluded cases to date exaggerated the claims of causation through impermissibly speculative and conclusory expert testimony. If that sort of trend holds up, that means that a majority of the lawsuits filed have severe factual problems even before one gets to the question of whether Merck did anything wrong. Imagine what would happen if Merck replaced the lawsuit process with a settlement process. See also my Apr. 20 post and John Simons, "Merck's got to keep fighting", Fortune, Apr. 25. If there's any corporate fiduciary duty to its shareholders here, it's to fight the lawsuits until the legal system provides a mechanism for policing fraud and punishing, rather than rewarding, the plaintiffs' attorneys who engage in it.

This is bad enough, but the status quo punishes apologies in another way. One could say that Merck's voluntary withdrawal of Vioxx was an apology of sorts, an admission that they were wrong in hindsight. Out of an excess of caution and concern for its patients, it removed the drug from the market. I originally thought that this was a good idea, but now I'm not so sure. At the same time Merck has made its withdrawal from COX-2 sales, Pfizer, facing similar cardiovascular data for Celebrex (celecoxib), a COX-2 inhibitor that works much like Vioxx, has kept its drug on the market, and even resumed marketing it in April, plausibly arguing that the benefits outweigh the costs. (There are second-hand reports of Merck employees continuing to use a secret stash of Vioxx, which suggests the same cost-benefit analysis is true for rofecoxib.) Merck has been sued by over 20,000 groups of plaintiffs, with thousands more likely to sue in the next three months as the statutes of limitations start to expire. Pfizer faces a small fraction of that amount (under 2000 suits to date), and hasn't had its name dragged through the mud the way Merck has. All Merck's overcautious safety has done is prompt the media to single it out and provide free advertising to the plaintiffs' bar. As Merck gets buried by a massive amount of litigation, and gets perversely punished for its commitment to safety, one wonders: will future officers and directors follow the Merck model or Pfizer model of risk aversion? Keep this in mind the next time you hear ATLA argue that lawsuits make consumers safer.

Collateral estoppel, or issue preclusion, is the principle that a party that has lost an issue at trial doesn't get to relitigate the same issue at a future trial. Offensive collateral estoppel permits a plaintiff to use the doctrine against a defendant. Once upon a time, the doctrine only applied if it was possible for both parties to use collateral estoppel against one another from a previous trial, but a generation ago courts began to acknowledge the possibility of "nonmutual" collateral estoppel: if Y wins issue A against Z, X can seek to preclude Z from contesting issue A in a future trial.

In the wake of the Cona/McDarby verdicts, we see a number of plaintiffs' attorneys (faithfully reported by the press (also here)) and plaintiff-attorney bloggers suggesting that nonmutual offensive collateral estoppel will now apply to the next 4000 New Jersey Vioxx trials (not to mention the $12-billion consumer-fraud class action), with only the issue of causation and damages to be litigated.

Except that Merck can defend against any such motion for collateral estoppel by noting that there are conflicting jury verdicts out there, because Merck won every single issue (including a consumer fraud claim) in the Humeston New Jersey case.

In my mind, it's common sense that if there are inconsistent verdicts, nonmutual collateral estoppel cannot possibly apply. Any other result would mean that a defendant is essentially playing Russian roulette with every trial, because it could win twenty trials in a row, and then be precluded from defending itself if it lost the twenty-first. And courts agree: they don't grant collateral estoppel in such circumstances. As the Supreme Court noted in the landmark case of Parklane Hosiery, preclusion "may also be unfair" if the judgment relied upon "is itself inconsistent with one or more previous judgments." See especially Setter v. A.H. Robins Co., 748 F.2d 1328, 1330-1331 (8th Cir. 1984) and Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 345-346 (5th Cir. 1982), products-liability cases with just this fact-pattern, which denied collateral estoppel because the defendant had won some as well as lost some. So, honest question: has there ever been a case (much less a New Jersey case) where a court has imposed a Russian-roulette nonmutual-offensive-collateral-estoppel standard, and imposed collateral estoppel on a defendant who has had some success? And if not, why are attorneys treating it like this is even an outside possibility in New Jersey? And why can't reporters double-check with a single expert who can debunk these patently false legal arguments?

Almost 300 people called to jury duty answered 167 questions on a 25-page screening form; ten have been selected. And the AP reports that five of the ten jurors are casino workers. You may recall that the one dissenting juror in the Humeston defense verdict was a resort worker (New Jersey state juries, unlike federal juries, need not be unanimous), and that Merck has had more success with educated jurors with experience with business documents. (Jurors may drop out throughout the trial, and the case could be decided by as few as six.)

You may also recall that Judge Higbee consolidated two plaintiffs' cases in a single trial, to the detriment of Merck (Dec. 8, Feb. 24), who expressed concern that the jury would be less likely to consider individualized issues of causation. And there are individualized issues in this case. 59-year-old Thomas Cona had high cholesterol and blood pressure; moreover, Merck argues that his pharmaceutical records don't support his claim that he took Vioxx for more than eighteen months. (Moreover, he continued to take Vioxx after his 2003 heart attack.) 77-year-old John McDarby had health issues including hardening of the arteries and diabetes. Both suffered non-fatal heart attacks. (Jeff May, "Jury Will Get Twice The Vioxx", New Jersey Star-Ledger, Feb. 28).

Opening arguments are Monday, and the case should go to the jury in late March. See also our previous Vioxx litigation coverage.

�Dodgeball Vioxx" is a now-notorious document that both captured the popular imagination and played a prominent role in Mark Lanier�s opening statement in Ernst v. Merck. (E.g., AP/CNN, Jul. 20.) The document is a colorful set of pages that has been characterized as instructing sales representatives to �dodge� questions about Vioxx. Except that the document does no such thing. I saw the document for the first time on line at a web site promising "smoking gun" documents about the Vioxx case.

The �Dodgeball� game was part of a day-long training session for representatives on how to intelligently answer questions and concerns doctors might have. The session also had role-playing and other educational games, including one that had sales representatives throwing a koosh-ball to one another, and another that was a game show team competition similar to �Jeopardy!� Dodgeball was a card game that consisted of two-sided cards; some cards had questions that doctors might pose to pharmaceutical representatives; other cards said �Dodge� and allowed the representative to advance without answering a question.

Don't just take my word about what the document says: Read it for yourself.

One might question the pedagogical effectiveness of this exercise, which could easily be satirized in a �Dilbert� cartoon. But it�s hardly the sinister conspiracy that the plaintiffs� bar has sold to the media, which apparently took attorneys� representations at face value without actually trying to understand the underlying document. It says something about the litigation system's creative cherry-picking of documents that a camaraderie-building educational exercise can be characterized as one that �taught representatives to play �Dodgeball� when doctors voiced concerns.� (That quote comes from Alex Berenson, �For Merck, The Paper Trail Won�t Go Away,� New York Times, Aug. 20, without any qualification whatsoever.) If lawyers need to vet the most trivial activities to anticipate the possibility that they�ll be used against the company in future product liability litigation—and that reporters will unthinkingly parrot the claims of plaintiffs' attorneys—the costs of doing business will rise astronomically.

The spin of the plaintiffs' bar after their Humeston loss was that Humeston's attorney, Chris Seeger, didn't emphasize the "marketing" documents enough. But he did play up the "Dodgeball Vioxx"—the jury just saw through it.

That this document is what the plaintiffs' bar is claiming is the smoking gun just goes to show how flimsy the case against Vioxx is; if only the New York Times weren't participating in the attempted assassination. (Update: Wonkette falls for the hype.)

Stories correctly note that many more trials will need to be held before there's any discussion of settlement, and that plaintiffs' attorneys don't admit being discouraged by the Humeston loss. The next case, Irvin, will begin in federal court on the 28th, where plaintiffs will be limited to Daubert-quality expert testimony before Judge Fallon, but will involve a wrongful death claim (albeit one with a decedent who had extensive plaque in his arteries). The plaintiffs' attorney there will be Jere Beasley, whose aborted first attempt at a Vioxx trial was covered by Overlawyered Apr. 28. Judge Higbee will hold a hearing this week to decide which of four potential plaintiffs' cases will be tried next. (Thomas Ginsberg, "Merck can expect more highs, lows", Philadelphia Inquirer, Nov. 6; Barbara Martinez, "Merck Faces A Crossroads In Vioxx Cases", Wall Street Journal, Nov. 7 ($); "Merck's Vioxx Victory May Not Help Future Cases, Analysts Say", Bloomberg, Nov. 4; Kristen Hays, "1st federal trial up for Merck", AP, Nov. 6).

Merck's attorney in the Irvin case will be Phil Beck, who won a critical Baycol case against Mikal Watts (Nov. 2) in Corpus Christi (OL Mar. 19, 2003). The must-read Wall Street Journal recap of that trial is now online. (Monica Langley, "Bayer, Pressed to Settle a Flood Of Suits Over Drug, Fights Back", Wall Street Journal, May 4, 2004).

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.

One cannot draw too many conclusions from this case. As plaintiffs go, Frederick Humeston was a poor one. He had numerous health problems; he took Vioxx only intermittently for two months; and even if one assumes causation, his injury was relatively minor: Humeston is back at work and his supposed life-limitations could equally be ascribed to a bad knee as to his heart problems. (Studies show that juries—and neutral experts!—are more likely to find fault with a defendant when presented with more serious injuries. Sympathy is a powerful human emotion.) In addition, the fact that he was already in a dispute with his employer over a disability claim hurt Humeston's credibility, especially when he denied any stress from learning shortly before his heart attack that a PI was investigating whether he was faking his injury.

Still, one can draw some conclusions: a relatively educated jury will consider issues of causation if not overwhelmed by sympathy. Overstated expert testimony only goes so far without that sympathy. A jury with relevant employment experience is capable of seeing through the attempts by plaintiffs' attorneys to take e-mails out of context:

Neither [juror Nellie] Stetzer nor [juror Vickie] Heintz were swayed by the e-mails and marketing materials the plaintiffs provided in an attempt to prove Merck knew about Vioxx's risks but concealed them to make money.

"A lot of us were business people. We understood they needed to do sales training," Stetzer said. "I don't think Merck knew the dangers. I truly believe they thought the drug was safe." (AP)

[Juror Judy] Lamando said she wasn't moved by the inflammatory emails from inside the company or Merck's aggressive marketing of the drug. "We're all in business and that's what we do," she said. [...]

Ms. Heintz, the juror, said she felt Mr. Seeger "cherry picked" a few select emails to try and indict the company with them -- echoing the same phrase that Ms. Sullivan of Merck had used repeatedly in her closing statement Tuesday.

Juror Patricia Harley, 44, said the internal emails weren't a problem for Merck. "If someone peeked through all my emails, forget about it," she said. As to Merck's marketing: "That's business. Merck is in business to make money. You can't fault them for making money." [...]

Ms. Heintz also said she wasn't bothered by Merck's aggressive marketing of Vioxx or documents that showed the company calculating the loss in profits if the warning label were changed to reflect increased of heart attack. "Medicine is business," she said. "If I had a business I would calculate what the loss of one of my big products would mean� This about making money. Merck doesn't do this because they are flower people." (WSJ)

The Ernst case in Texas, in contrast, had a relatively uneducated and inexperienced jury; featured a grieving widow; and had the unusual circumstance of Merck being tricked into vouching for the credibility of the plaintiff's surprise expert witness in its opening statement, which did much to deflate Merck's legitimate causation defense.

Of course, the Humeston jury, like the Ernst jury, was also capable of being influenced by irrelevant factors:

Heintz also praised Merck lawyer Diane Sullivan for making eye-contact with the jurors and said Humeston's attorneys were too abrasive. "I thought that was a big turnoff," she said.

On such game-show qualities are billions of dollars of shareholder value created or destroyed. (Theresa Agovino, AP, Nov. 3; Heather Won Tesoriero et al., "Merck Scores Major Victory In the Second Vioxx Trial", Wall $treet Journal, Nov. 3).

It's also too soon to tell how the trial bar will react to this verdict. (See Evan Schaeffer for one early reaction.) There will be other New Jersey cases before September 2006, and those additional datapoints will help plaintiffs' attorneys decide whether to file in New Jersey, where there appears to be a judge favorably inclined to them, or seek to use other state courts. And certainly, plaintiffs will try harder in the future to find a more ignorant jury. And don't expect ATLA to issue a press release quoting jurors from this case.

Update: More discussion at our November 4 post.