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Merck's absent execs

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As Ted pointed out in his Monday post, post-trial interviews indicate that among the factors explaining juror anger at Merck in last week's Vioxx verdict was the fact that no senior executives of the drug company attended the trial. Quoting the Wall Street Journal: "The big guys didn't show up," said [juror John] Ostrom. "That didn't sit well with me. Most definitely an admission of guilt."

Ted interprets this as irrational on the grounds that:

There are several thousand Merck lawsuits. Not even every senior Merck attorney can attend every single Merck trial. Is the company supposed to shut down so the executives can spend all their time as a full-time courtroom audience?

Megan McArdle takes the same view.

I must say my reaction was entirely different. The Ernst case was the first to go to trial, and aside from the large direct sums at stake, Merck executives surely knew that it was expected by both sides to set a tone and establish a momentum that would carry over to all subsequent litigation and press coverage. Just in case the New Jersey-based execs had somehow been inattentive to the trial's significance, the New York Times had given prominent play to articles by its reporter narrating key events in the Ernst trial and giving a rock-star-like buildup to plaintiff's attorney Mark Lanier. And the result of the Angleton verdict, quite predictably, has been to call forth a flood of new claimants. On a reasonable calculation, counting all future repercussions, Merck's bad result at trial last week is likely to have cost it billions. And its CEO was not there because he found it more important to be doing...what, exactly?

No, my assumption was that high Merck execs were absent not through inclination but on advice of counsel: had their lawyers considered it advantageous for them to make an appearance, they would have done so. The objection that an exec wouldn't have time to attend hundreds or thousands of trials strikes me as beside the point: future trials won't have anywhere near the influence of this one, so there's nothing inconsistent with planning to attend the first trial but not the nineteenth, provided that it helps to attend.

Why wouldn't trial strategists have considered it advantageous for execs to attend? Juror Ostrom's view that their non-attendance was "definitely an admission of guilt" seems absurd on any number of levels. (For starters, who said guilty parties don't find advantage in attending their trials? They profit even more than the innocent from the chance to make eye contact with jurors, establish a human connection, etc.) Moreover -- again, as Merck's lawyers must have known well -- it has long been a standard tactic for plaintiff's lawyers to incite the indignation of small-town jurors by pointing to an empty chair as evidence that the deep-pocket out-of-town defendant is cold and uncaring and needs the jury to "send them a message".

I can offer only speculation as to why the execs would purposely be absent. Maybe they figured that attendance would confirm the impression that this was a big case with the whole world watching, etc. -- ordinarily an impression that works in favor of high punitive demands -- or maybe they thought the company was better represented by scientists lower down in the hierarchy than by financial types. Readers are welcome to send in their own possible explanations, or react to mine.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.