Results matching “vioxx”

More on Higbee recusal motion in Accutane litigation - PointOfLaw Forum

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.

More on the Daye diversity study - PointOfLaw Forum

Don't miss the comments, especially an insightful one from Roger Clegg regarding the study's timing, on my earlier post about the Daye diversity study. Paul Caron was kind enough to cite to my rebuttal, but blogs like JDJournal blithely repeat the press release with a headline that the study "proves" the benefits of diversity.

One commenter writes: "You assume that LSAT scores or college grades are a predictor of success as a law student, and that success as a law student is a predictor of competence in the practice of law." I don't just assume it. I know it to be a fact. The race is not always to the swift nor the battle always to the strong, but that's where the smart betting man puts his money. As Richard Sander has demonstrated, LSATs do predict law school success; law school success does have predictive value for career success. Not everyone with a perfect LSAT will become a millionaire (some of us will foolishly toil in the think-tank mines and fritter away their skills with other non-profit work), and not every smart attorney was Order of the Coif in a top-six school, but ceteris paribus, law firm hiring attorneys have Bayesian reasons to want graduates with good grades from top law schools.

Now, concededly, there's more than one way to be a success as an attorney. Someone with extraordinary social skills can squeak past the bar exam, and use his social skills to recruit many clients with profitable cases, and then hire other attorneys to do the intellectual heavy lifting; someone else with exceptional charisma and oral communications skills can persuade juries (or threaten to persuade juries) of facts that just aren't so, and use those results to attract clients and negotiate favorable settlements before appeals courts throw out the cases. If you have these rare skills, you have the capacity for far nicer Christmas parties than the average Harvard Law Review editor, and your LSAT is irrelevant—but so is the name on your law school diploma, and thus your relevance to the conversation about opportunity and the need for racial preferences.

Wherein Max Kennerly attacks a strawman - PointOfLaw Forum

Yesterday on Twitter, trial lawyer Max Kennerly accused me of promoting non-substantive policies in a throwaway tweet. I challenged him to name one. Rather than admit that he was wrong, he made up one: he falsely claims that I think "injury plaintiffs should always lose." This is clearly false, and I told him so.

He asked me to name five injury plaintiffs I thought should win; because of Twitter's 140-character-limit, I understood his "injury" to mean "injury" when he apparently had a secret meaning as "personal injury," when I listed five injured plaintiffs. So he's now claiming that because "injury" means something other than "injury," my examples didn't actually involve injuries and is making hay over the misunderstanding of his imprecision instead of being intellectually honest—including misrepresenting the result of Dewey v. Volkswagen, where class action attorneys tried to screw over a million class members who will now be able to collect for their injuries.

I've long complained about the game-show aspects of modern trial practice. Rather than a search for truth, trials have become a series of attempts by both sides to play "gotcha": can the lawyer trick the witness into saying something damaging that isn't true? Can the lawyer take an innocuous document out of context and fool a jury into thinking it is a smoking gun? Here, I apparently was supposed to respond "What do you mean when you say 'injury'?" instead of treating Kennerly as an intellectually honest person engaging in a conversation using the English language, and now he's playing "gotcha" because he had a secret definition of "injury" that I didn't deduce when he asked the question, and pretending that I couldn't answer the question he never actually asked.

It sort of shows the intellectual bankruptcy of reform opponents that Kennerly can't identify a single policy position where I'm wrong and feels the need to invent and attack a position that I've never taken and, indeed, no reformer has ever taken. Of course there are scenarios where personal-injury plaintiffs should win; I've even defended the position of plaintiffs in some hot-coffee lawsuits, for crying out loud. I've loudly condemned the medical malpractice at Desert Shadow Endoscopy (where trial lawyers ignored the malpractice and instead went after innocent deep pockets with the help of questionable judicial rulings). A friend of mine was recently the smaller mass in a pedestrian versus automobile accident, and should recover reasonable damages for her injuries against the negligent driver; when have I ever implied otherwise?

Kennerly owes me an apology, but he owed me a retraction the first time for his attack, and instead doubled down with additional dishonesty, and has now tripled down by expanding a forgivable tweet into a thoroughly offensive blog post (which he knows is false), so I don't expect it. But as I've discovered in the last three years of fighting trial lawyers ripping off "injury plaintiffs" (and winning millions of dollars for such "injury plaintiffs," often with the trial lawyers kicking and screaming against these recoveries), no matter how low my opinion of trial lawyers, I somehow manage to regularly underestimate how low they will go to promote their profits over people.

The "Contains Peanuts" warning on a peanut jar - PointOfLaw Forum

Stuart Mauney laughs at the "CONTAINS PEANUTS" and "Manufactured on shared equipment in a facility that processes peanuts" warnings on a package of "Hand-Cooked Virginia Peanuts" (presumably manufactured by Jumbo Virginia Peanuts, by Mauney's description). This offends Max Kennerly, who calls it a "harmless warning," and correctly notes that this particular wacky warning is mandated by the Food Allergen Labeling and Consumer Protection Act (FALCPA), rather than by in-house counsel responding to the threat of suit.

But one should note that it's not a harmless warning. As I blogged on Overlawyered in 2007,

David Rossmiller blogs:
My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: "I can see someone doing that!" Personally I've seen folks do much more ridiculous things many times.
The issue is whether people doing "ridiculous things" should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.

Such overwarnings have real social costs: as numerous studies have documented, if one's personal watercraft manual says "Never use a lit match or open flame to check fuel level," one's going to be less likely to slog through the whole thing and find the warnings that aren't so obvious. In many cases, the "failure-to-warn" is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus "hiding" its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level--and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a "Do not iron" warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases--such as the McDonald's coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn't "big enough" to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds--aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.

See also. The silly warning cases aren't just hypothetical, either. As we discussed just a few days ago, a warning of "KEEP AWAY FROM FLAMES, PILOT LIGHTS, STOVES, HEATERS, ELECTRIC MOTORS, AND OTHER SOURCES OF IGNITION" was insufficient to protect Blitz USA from liquidation in bankruptcy after David Calder inserted the nozzle of a $3.99 gas can into his wood-burning stove and successfully sued Blitz for the resulting catastrophe. And 117 people lost their jobs, and an untold number of people will be injured because they will be using substitutes for gas cans that are less safe.

Now, perhaps the benefits of having a simple-to-apply regulation that successfully protects people against allergens outweighs the marginal overwarning cost of this particular "contains peanuts" warning. But it's far from clear, and the reformers who warn of the problems of overwarning caused by our jackpot-justice product-liability regime are identifying a real public-policy problem that on balance makes us less safe.

According to government mortality tables, an 85-year-old male has a life expectancy of another 5.65 years. Unfortunately for Bobbie Izell, who worked in construction in the 1960s and 1970s, he was diagnosed with mesothelioma when he was 85, so his expectancy is a couple of years shorter. A year later, this month, a Los Angeles jury decided that this entitled him to $30 million in "compensatory" damages from ten defendants; coincidentally, the jury also found that the five defendants who were bankrupt or had otherwise settled were only 5% responsible collectively, while the deepest pocket, Union Carbide, was 65% responsible. Another $18 million in punitive damages were awarded against Union Carbide, on the theory that it should have unilaterally stopped selling asbestos in 1967, but didn't do so until 1985. Union Carbide denies liability entirely; the press coverage doesn't give any evidence on that one way or the other, or bother to explain the defendant's likely legitimate grievance. (Though precedent pretends otherwise, a jury that awards an irrational amount of damages almost certainly assigned irrational amounts of liability.) But the $30 million compensatory damages, nearly all of which is non-economic damages, is obviously absurd. What's the point of constitutional limits on punitive damages if the jury can effectively assess punishment twice under the guise of compensatory damages? [Similar on POL in 2006;]

Note that we have apparently gotten to the point where a $48 million verdict is dog-bites-man, and not especially newsworthy; this didn't make the Los Angeles Times or national news coverage other than specialty legal papers; the only blogs to cover it are the splogs that are advertising for asbestos attorneys.

The attorneys were from Baron & Budd; press coverage doesn't indicate whether they'd be sharing what would be millions of dollars of their fee with a "chicken catcher" lawyer who did nothing but recruit the client and pass along the file. Press coverage also doesn't indicate whether Izell has made paid claims with asbestos bankruptcy trusts inconsistent with the claims made at trial, or whether the defendants were able to obtain discovery from the trusts.

In The American Conservative, Ron Unz compares the Vioxx litigation to the Chinese melamine scandal, and finds the American justice system lacking. (Also: Sailer; Roberts; and a plaintiffs' lawyer who makes the lay mistake of confusing a mass tort with a "class action".) But Unz's entire argument is based on an incorrect premise. Unz assumes that David Graham is correct in implying that Vioxx had "probably been responsible for at least 55,000 American deaths during the five years it had been on the market." But Graham is not. While Graham's text in the Lancet made wild allegations, the headlines were not supported by his underlying data, which found a relative risk of low-dose Vioxx of 1.24, which was not statistically significant. A later Lancet study confirmed that Vioxx and other COX-2s were no worse than other NSAID pain relievers when it came to cardiovascular risk.

And, of course, Vioxx was not merely a product of corporate profit-seeking; it had benefits over other pain relievers. Since Vioxx has been withdrawn from the market, serious ulcerations have increased 21%.

Merck's total legal bill for Vioxx is in the range of $8 billion and counting, though it correctly won the vast majority of cases taken to final judgment; the only ones it lost, it lost due to junk science. Merck's experience with Vioxx is certainly a damning indictment of the American justice system, but for reasons opposite than the ones Unz thinks.

What media bias? Prakash on Penn State - PointOfLaw Forum

If you had any doubt about NPR reporter Snigdha Prakash's bias against Merck when covering the Vioxx litigation, she completely dispelled it with a wrong-headed piece in Slate about Merck CEO (and former general counsel) Charles Frazier being appointed to head the investigation on the Sandusky scandal at Penn State. Prakash slanders Merck with a variety of false claims, referencing the bogus Lancet study claiming Vioxx caused an additional 140,000 heart attacks; claiming "most of the five-and-a-half years it sold Vioxx, Merck knew the drug doubled the risk of cardiovascular problems among users" (they didn't and it didn't); "withholding clinical trial results that would have definitively proven Vioxx's risks to federal regulators" (they didn't and they didn't). Even today, it is unclear whether Vioxx produced a net benefit, with its gastroprotective aspects outweighing the slight increase in cardiovascular risk. Prakash complains that Merck settled its cases for "only" $5 billion (plus another $2 billion in defense costs): why does she think that the lawyers left tens of billions of dollars on the table if Merck had actually done something wrong? She mentions the tens of thousands of suits, but not that thousands of those suits involved plaintiffs who hadn't even taken Vioxx—and that the lawyers who committed fraud on the court suffered no consequences (and in fact were rewarded handsomely). To top it all off, she ignorantly suggests that the appointment of Frazier suggests a scorched-earth litigation strategy by Penn State, though Frazier will have nothing to do with Penn State's legal strategy (and is likely to have little role beyond editing and delivering an investigative report generated by other attorneys that he supervises). Earlier.

Center for Justice & Democracy study on new media - PointOfLaw Forum

A Center for Justice & Democracy study complains that "new media" overreports big-money plaintiffs' verdicts, while failing to report on all the small-money verdicts and losses. This strikes me as akin to complaining that there was a lot more tweeting about David Freese's World Series walk-off home run, when there are far more Little Leaguers who pop out to shortstop. Of course the news stories that are interesting and novel are going to get more attention than the events that are routine. Readers don't want to read about $15 thousand traffic accident cases, even if there are many more of them than multi-million-dollar propofol cases. Nor should they: the latter has real public policy consequences from trial lawyers putting profits ahead of people, while most traffic-accident cases do not.

So far CJD is doing nothing but identifying the obvious. But then, in its typically shoddy fashion, CJD draws conclusions that its data do not support. As I point out in an interview with Fair Warning, CJD's complaint about shorthand media reports does not support its conclusion that the result is to prejudice plaintiffs and the civil justice debate.

For example, CJD complains that newsrooms fail to mention that caps will reduce verdicts in many cases. But this is hardly a conspiracy by corporate media to promote an image of jackpot justice. It's plaintiffs' lawyers who are using the big (and often ultimately unsustainable) verdicts to draw business to themselves. For example, in Ernst v. Merck, as I pointed out contemporaneously, Mark Lanier's $253 million verdict could not possibly stand under Texas law's caps; indeed, as I predicted at the time, the entire judgment was thrown out for trial shenanigans. But Lanier disingenuously told reporters for over a year that he didn't think caps would apply to his verdict, and stalled the eventual appellate reversal so that he could use the publicity from the megaverdict to sign up thousands of clients that plaintiffs' lawyers ultimately turned into a multi-billion dollar settlement against an innocent defendant. Lanier's loss in Ernst, and the fact that Merck was victimized by thousands of fraudulent cases, didn't get a fraction of the publicity of the initial flawed jury verdict. That sort of analysis is absent from the one-side CJD "study."

Similarly, the exoneration of Toyota in the trial-bar's ginned-up sudden-acceleration hysteria got a fraction of the publicity as the original false claims of the trial bar; Jamie Leigh Jones's false accusations got much more promotion than the fact that they contradicted the evidence and a jury quickly rejected them. Teva and other propofol manufacturers are being dragged through the mud in the coverage of the Nevada litigation over propofol misuse, while the unfairness of that litigation gets a fraction of the coverage, and almost never mentioned in the stories about the big verdicts themselves. Susan Saladoff's dishonest documentary on the McDonald's hot coffee case has a far bigger footprint on the web than the truth about why the case is frivolous. (Ironically, Wyzga does a mea culpa for taking the CJD study on faith without considering the other side of the story, and then repeats the mistake with "Hot Coffee" in the next blog post.) conclusions on faith without considering the other side, and The media is far more likely to report sympathetically about litigation as a David-and-Goliath story when, in fact, the trial bar is wealthy and politically connected, and willing to use that power to extract wealth using trumped up allegations that fail to distinguish the innocent from the guilty. Again, this sort of analysis is absent from the CJD paper. The legal establishment promotes CJD's dishonest blog, while debunking websites are ignored.

Yes, media coverage of the civil justice system can be sensationalistic and skewed (as is the media's coverage of most events). But it's corporate defendants that bear the brunt of it.

Gryphon on Prakash on Vioxx - PointOfLaw Forum

Texas Supreme Court finishes off Garza v. Merck - PointOfLaw Forum

In a unanimous opinion that is no surprise to readers of Point of Law, the Texas Supreme Court threw out the entirety of the Garza v. Merck Vioxx case Friday on the grounds that the junk-science expert evidence didn't meet the standards of Havner, the Texas equivalent of Daubert. A Texas appellate court had earlier remanded the case for a new trial, discarding the original multi-million dollar verdict on juror misconduct grounds. [Garza v. Merck via Beck; but see criticism from Oliver]

Cases like this demonstrate why it's silly to use purely quantitative counts when trying to determine if a reviewing court is "pro-business." Any reasonable court, given the precedent, would have reached the result the Texas Supreme Court did. But the lower courts made ridiculously anti-business decisions that flouted Texas Supreme Court precedent, with the trial court countenancing appalling juror misconduct. The decision is a victory for business and the rule of law, but if the lower courts had not been anti-business, this case never would have gotten to the Texas Supreme Court in the first place to inflate its "pro-business" statistics. Related.

Vioxx fee-ing frenzy - PointOfLaw Forum

Alison Frankel reports upon Judge Fallon's decision divvying up the nine-digit "common benefit fund" in the gigantic Vioxx settlement. Among the beneficiaries are the attorneys who won the notoriously bogus Garza case in south Texas—though that decision was reversed on appeal, they still get $2.7 million from the common fund. Other attorneys also got millions for winning jury verdicts that were eventually reversed for their "salutary effect on the Vioxx litigation."

Note that the justification for the $1000/hour contingency fees attorneys get in these cases is the risk they take that if they lose they get nothing. Now, it seems, attorneys can get paid even when they bring meritless cases and lose.

What media bias? files - PointOfLaw Forum

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.

Around the web, March 7 - PointOfLaw Forum

  • Unintended consequences of Dodd-Frank. [Richard Epstein @ Barron's ($)]
  • Vioxx endgame a feeing frenzy. [WSJ Law Blog]
  • Javelin Marketing threatens meritless SLAPP suits against critics. [Public Citizen]
  • Does Michigan have more truck accidents because it doesn't have punitive damages? Refuting a trial-lawyer canard. [Cutting]
  • Why do newspapers support Snyder v. Phelps but not Citizens United? [Make No Law]
  • Death row inmate wants to donate organs. [NYT]
  • Obama DOMA decision opens up tax can of worms. [Tax Prof]
  • Walter Olson interview on Schools for Misrule. [Daily Caller]

RIP Jack Calfee - PointOfLaw Forum

Sadly, economist Jack Calfee passed away unexpectedly from a heart attack Wednesday night. He had written for Point of Law about the Vioxx litigation, and we frequently cited him about drug and vaccine regulation and litigation. Calfee also did important work on non-economic damages in the 1980s and 1990s. He had moderated panels for me and vice versa when I was at AEI; he was also a client. Jack will be missed, both as a scholar and as a friend. I'm sorry that I will miss his memorial service because of a preexisting commitment in California. Other memories: Sam Kazman; Tevi Troy; John Graham; Galen Institute.

Around the web, December 29 - PointOfLaw Forum

  • No class certification in light cigarette class action in Maine. [Jackson; In re Light Cigarettes Mktg. Sales Pract. Lit. (D. Me. 2010)]

  • The silly Happy Meal lawsuit; meanwhile, South LA's "temporary" fast-food ban has turned permanent. [Olson @ NYDN; Reason]
  • Mississippi court reverses one of the few welding plaintiffs' verdicts on statute-of-limitations grounds. The mass tort—which apparently featured more than its share of mass tort fraud—has petered away as the defendants put up a firm defense instead of settling. [Wajert]
  • "The dangerous allure of behavioral economics." [Richard Epstein @ TOTM]
  • Unintended consequences and the incandescent bulb ban. [Carney @ Washington Examiner]
  • Vioxx MDL awards plaintiffs' committee $315 million, which isn't unreasonable for a $4.85 billion settlement. [American Lawyer; opinion]
  • In a Wisconsin case, the Brady Center does a very good job in finding a distasteful defendant to promote a legal theory of nuisance and liability for selling guns illegally. [WSJ]
  • Federalist Society debate on the constitutionality of healthcare reform, featuring Barnett, Cordray, Fried, and Rivkin. [Fed Soc]

Around the web, November 15 - PointOfLaw Forum

  • Merck responds to Mark Lanier's factually creative Vioxx comments on the Stossel show. I just remember being in the Green Room and repeatedly muttering. "That's not true. That's not true, either."
  • More on the Breusewitz v. Wyeth vaccine case. [Park @ Heritage]
  • Mickey Kaus points out a trial-lawyer-friendly employment-law provision of the California legalized-marijuana referendum that should perhaps have us sighing with relief that it didn't pass. We can end the War on Drugs without killing jobs. [Kaus]
  • Extraordinary prosecutorial abuse in closing statement excused by court; I'm less concerned by the Georgia Supreme Court ruling, given the strategic decision of defense counsel not to object, than I am that a trial-court judge would have permitted the behavior in the first place. [Smith v. State (Ga.) via Volokh]

  • Two "stream-of-commerce" personal jurisdiction merits briefs in U.S. Supreme Court. [Beck]
  • Reform of lame-duck sessions? [Ackerman @ WaPo & Balkinization; Adler @ Volokh]
  • Fred McMurray-lookalike Captain Marvel taken down by a thousand paper-cuts of litigation. [Comic Book Resources (h/t D.F.)]
  • Outrage over TSA virtual-strip-search screenings and abusive retaliatory gropings for opt-outs. [FlyerTalk; Salon; Goldberg; nonviolent resistance; and lots of blogging from Bainbridge]

  • One of those investigations Republicans are threatening of the Obama administration might include one about the firing of Americorps inspector general Gerald Walpin, who complained about a sweetheart deal with an Obama-favored politician accused of wrongdoing. [Wash. Examiner]

Thinking like non-lawyers - PointOfLaw Forum

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.)

Mark Lanier flip-flop on "Stossel"? - PointOfLaw Forum

The odd thing about Mark Lanier endorsing "loser pays" on "Stossel" is that he took the opposite position when the Wall Street Journal covered Marie Gryphon's paper last year.

Links related to yesterday's program (which Fox Business News is rerunning all weekend):

Manhattan Institute on "Stossel" tonight - PointOfLaw Forum

This week's edition of "Stossel" on Fox Business News features Marie Gryphon talking about "loser pays", me talking about class action settlements and the Center for Class Action Fairness, and both of us debating the issue (and the Vioxx case!) with trial lawyer Mark Lanier. Tonight at 9 Eastern and midnight, with rebroadcasts Friday and Saturday.

(CCAF is not affiliated with the Manhattan Institute.)

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