This will surely add to the tort reform calls:
In the first verdict of a Vioxx-related personal-injury lawsuit, a Texas jury found the drug’s maker, Merck, liable and awarded $253.5 million to the widow of Robert Ernst, who died in 2001 after taking the painkiller and arthritis medicine.
After deliberating for a day and a half, the jury of seven men and five women awarded Mr. Ernst’s widow Carol $24.5 million for mental anguish and economic losses. The jury also awarded an additional $229 million in punitive damages after finding that Merck had acted recklessly in selling Vioxx with knowledge of the risks associated with taking the drug. Two jurors dissented from the verdict, which did not have to be unanimous.
Merck plans to appeal the verdict, and such large judgments are typically reduced by higher courts.
Judge Ben Hardin of the Texas District Court announced the verdict on the fourth floor of the Brazoria County Courthouse in Angleton, about 40 miles south of downtown Houston, shortly after 1:45 p.m. Central Time.
Mrs. Ernst, her family and lawyers erupted in cheers and began to hug each other.
“The justice system in America works and it works very well,” W. Mark Lanier, the lead lawyer for Mrs. Ernst, said.
Jonathan Skidmore, a lawyer for Merck, the nation’s third-largest drug maker, said that the company continued to believe it had properly researched and marketed Vioxx.
“We believe the plaintiff did not meet the standard set by Texas law to prove Vioxx caused Mr. Ernst’s death,” Mr. Skidmore said.
With a flood of Vioxx lawsuits soon to reach juries, the size of the verdict may have important implications for both Merck and the entire drug industry, lawyers and analysts said. More than 4,000 Vioxx-related cases have been filed.
I am surprised the case was not brought in WV or Mississippi.
Steve
You should not underestimate the power of the Texas plaintiffs’ bar. Those folks have some real juice.
SomeCallMeTim
Texas, Mississipi, and West Virginia. Who did those guys vote for in ’04? And how strong was that vote? Don’t screw us because y’all can’t handle your own business.
Doug
There was an NPR story a few weeks back about the efforts Merck went to in an effort to prevent negative studies on Vioxx from coming out. Pressuring researchers to back off. I wouldn’t be surprised if it was the cover up rather than the crime that’s causing Merck problems.
As it should be. If they just missed a potential hazard of the drug, that’s not particularly bad behavior. But if they knew or suspected a problem and made efforts to prevent its discovery and/or dissemination, then they deserve to have hell rain down on them.
Johnny
The Vioxx case sucks. BUT….
Read these warning letters first..
1999
2001
(.pdf warning)
This suit was completely bogus, but lets be honest, if the pres and Bill Frist don’t know the difference between scientific theory and belief, why should a jury?
Really thought, used to work in big pharma. I knew the day the second warning letter came out that today’s verdict was coming.
The verdict: stupid.
Merck: stupider
Basically they had a “blockbuster” (yes, we really did call them that in the industry) and were head to head with the other cox-2, Celebrex. It was like they were holding a pair of 9’s, but thought they would bluff like the had a straight flush, and they got called. The real shame of it (I knew one of the researchers, and he is still pissed at the marketing dept for trying to hide the CV data) is that the Merck marketing dept, in trying to squeeze a few extra dollars, hired back door Docs to go to conferences and refute the CV data, had they stopped after being warned…Vioxx would still be on the market.
Both the Cox-2 drugs are worthwhile drugs (I’m not so convinced on the other cox-2 compounds, parecoxib and valdecoxib), but because of those letters…well hell, the jury is gonna treat that kind of thing the same way as they treat a confession, even if the perp refutes it at trial.
Plus I would actually say that only 1 out of 10 of the people who were prescribed these really should have been. Read the letters, it will explain the verdict, and nearly everything that has happended to Vioxx.
ppGaz
Amen.
Although, I favor some form of tort reform. Not limits to suits, but perhaps redirection of some portion of awards. But this needs to be done carefully. Without the incentives that drive litigation and discovery of the downright evil things that go on inside corporations, we’re at the mercy of profit-driven shitheads. That would be, as they say, N.G., to say the least.
DougJ
Look, the case for tort reform becomes stronger the more one hears about it. Last week John posted something about a bogus suit filed by someone who failed to put down the emergency brake on his van. The van rolled and was damaged the guy sued.
Where does the litigation end? Do people really deserve money for spilling hot coffee on themselves or for getting sick from “spider eggs” in their chewing gum or blowing up from eating pop rocks? No, these costs from suits are driving our businesses into bankruptcy and making our companies less competitive internationally. These sorts of suits simply do not exist in places like Japan and China, countries that I fear will soon surpass us in terms of economic output.
ppGaz
Before it gets to court, mostly.
The figures I’ve recently seen show a decline in filings, and awards. The “issue” just might be an opportunity to manipulate you, Dougie. Say what?
The irony of it, eh?
DougJ
Irony? I don’t see any irony here. Maybe you should stop listening to Alanis Morisette and start reading the classics. You might learn something.
Tap the Fem Tart
The problem with the legal system is that through an evolutionary process, it has evolved into entity that primarily feeds lawyers. There is no justice in the law. Even if you win a suit, you can lose after the lawyer takes his cut and costs are assessed. True tort reform is necessary.
First, lawyers should not get a single dime of punitive damages. If punitive damages are assessed, the court should assume the role of spending them in a manner that rights the wrong committed by the tortfeasor.
ppGaz
The hell you say.
Mark-NC
The problem with most tort reform I’ve seen discussed is that it limits dollar awards severely.
Consider a $1M limit. To a company like Merck, GM, Microsoft, etc. – that is such a small amount that losing a case causes no harm. If lawsuits are no longer a threat, companies will act to maximize profits at the public’s expense with impunity.
Not good!
I’d rather see us adopt the British system. Like here, you can sue anyone. But if you lose, you pay for the defendants time and expenses. It tends to keep the frivilous suits to a minimum since losing a case can have a severe monitary penalty.
AND – paying the bill should be on the law firm – not the person who wants to file. In that case, the lawyers – who know law and precident – would actually mind the gates of what should be in court, and what is just trash!
DougJ
Where I come from, 1 million dollars is still a lot of money. Plenty of money to get for spilling coffee on yourself or finding spider eggs in your bubble gum.
Joey
You don’t come from a world of mult-billion dollar corporations then. The people may not deserve that money, but the companies certainly deserve to be punished if they do something wrong.
JWeidner
For most anyone, 1 million dollars is a lot of money. The problem is that it isn’t a lot to these corporations that actively engage in wrongdoing. Is the tort system abused? Certainly it is. Do some corporations abuse the public trust by intentionally causing harm? Absolutely they do. But they’re (theoretically) much more cautious about it if they know they could get hit with a multi-million dollar verdict as a result of their wrong-doing. To focus on the “hot coffee” case as if that is representative of all tort cases is disingenuous at best. There are many documented instances wherein a company purposefully marketed a product they knew to be faulty to a point that it could kill someone. Or a company dumped toxic waste near enough to a community’s water source as to cause injury, if not fatality. I’m sure if I spent an hour on the web, I could dig up many, many more.
So, it’s not a perfect system. But sometimes it’s all there is to keep a company like Merck in line. They’d otherwise scoff at a verdict that could be capped at a million bucks.
And, please, enough about spider eggs in bubble gum. It’s easy enough to find out that what you’re quoting is nothing more than urban legend.
iocaste
The bulk of the award was punitive damages, which are capped in Texas — the widow will ultimately get maybe 10% of that award, so there’s no need for further reform.
As for the merits of the suit, newspapers reported that jurors gasped when Merck executives openly admitted that their internal evidence of Vioxx problems differed from what they told doctors, and then defended their actions by saying that they didn’t technically lie.
iocaste
Also, according to the Houston Chronicle, the $229 million punitive damages award represented the profits Merck made by refusing to put a warning label on Vioxx for four months.
Mark-NC
JWeidner has debunked the “spider egg” thing that DougJ loves so much – I’ll do the same for the McDOnald’s coffee.
What the jury heard was that the industry standard was 165 deg. F. This is hot, but won’t cause severe burns.
McDonald’s testified that they IGNORED the precident and kept their coffee at 180 deg. F because they thought they could sell more coffee that way. The company policy was that if a lawsuit came from someone getting scalded, they would handle them as they came in.
Well, one did come in. The woman only asked that McDonald’s pay for her hospital bill – nothing more. McDonald’s said she’d have to sue to get a dime! She did, and the jury gave McDonald’s a fully earned slap in the face!
Ted
Mark-NC, you’re repeating trial-lawyer propaganda about the McDonald’s case. The jury heard that the industry standard was 165 degrees, but that wasn’t true; everything else you say is false. McDonald’s shouldn’t have had to pay a dime because they didn’t do anything wrong. See the discussion of the case on Overlawyered.
Full coverage of the Vioxx decision on Point of Law.
Mark-NC
Actually Ted, I’m repeating what my brother-in-law told me.
He was working in McDonald’s home office at the time, and that is how he tells the story of why they royally deserved what they got.
Rocky Smith
Suing for $40 million and get over $250 million. Why would tort reform be needed again?
Trial Lawyer
There are two results from tort reform; 1) a gargantuan dichotmoy between wealthy plaintiffs and poor plaintiffs; and 2) more government led regulation. The private tort system is a decentralized, capatlist response to a more centralized regulatory system. Face it; companies do nasty, nasty things that make peoples lives worse. When people have the ability to respond to that through the tort system, they tend to less frequently call for governmental regulation. The tort system acts as a release valve. This is a wonderfully decentralized system that encourages creative solutions, initiative, and private action. When people can’t use the tort system to redress their greivances, they will call for regulation. The other advanced democracies have less tort liability, but much more governmental regulation. Is that what libertarians want? Vioxx is an excellent example; Vioxx had tons of strategic options available to it to prevent this from coming to trial. As for the first result, legislatures can’t legally limit pure compensatory damages for lost wages. That’s unconstitutional. Wealthy plaintiffs are ptoected by this in a way that the poor are not.
Anderson
Conflicted creature that I am—a Democrat lawyer at a civil defense firm, in Mississippi no less—my take on this verdict is that it illustrates the creaky nature of punitive damages in the modern economy.
There’s just no good policy rationale for ad hoc punishment of a corporation by a smattering of uncoordinated punitive damage verdicts in half a dozen states.
On the other hand, any legislation to curb the problem would almost certainly go too far in the other direction. Punitives DO put some fear into corporations that would otherwise be free to “spread out” the harm they cause, such that no one could plausibly recover against them. Simply outlawing punitives in cases like this, or limiting them to a “cost of doing business,” would be terrible.
I’m trying to imagine a law that any court, state or federal, be required to deduct prior punitives from a punitive damages award, where the acts previously punished were materially the same in time & place.
Don
Speaking “calling for tort reform,” am I the only one who saw the WSJ article last week indicating that the number of tort cases resolved in the courts is down -80%- in the last 20 years? Conclusions regarding that are left as an exercise for the reader.
goonie bird
Its high time for tort reform its time to end this litigation nonsenses why should McDolands,Burger King and other fast food places be held liable for a persons irresponsible behavior? and the same gose for the firearms companies why should they be held liable for the crinimal misuse of their guns by crinimals and lets do something about malpractice
DougJ
Sean Hannity did a piece yesterday about tort reform. He discussed a former child actor who sued the maker of pop rocks because of a digestive problem that he suffered after consuming a whole jar of pop rocks along with a can of coke. The guy collected over half a million in damages. Doesn’t that seem ridiculous to you?
Trial Lawyer
Three things; 1) A plaitniff’s malfeasence can be taken into account. Most states have a system of “Comparative negligence;” after first determining that the defendant was negligent, a defendant may argue that the plaitniff’s negligence contributed to the harm. If the jury find that such is true, it must decrease the award to the plaitniff in porportiont o the plaintiff’s negligence. In other words, if the plaintiff’s negligence was 65% responsible for the harm, the plaintiff either receives 35% of the damage award, or (in some states) nothing, because plaintiffs who are more than 50% at fault cannot collect. Thus, that framework is already built into our tort system.
2) In most of these cases, critics are just second guessing juries. That is undemocratic (to say the least), eliteist, and incorrect. Juries are only allowed to hear certain types of evidence in civil cases. Most critics have no idea what the jury was allowed to hear, and most critics have no idea what they would find if they heard the same information. It’s shocking that the same people who automatically defer to the ignorant prejudices of the unwahsed majority on gay marriage feel as though 6/8/12 people selected from a representative pool of the community are incapable of making intelligent decisions in legal cases. That’s inconsistent. 3) Would true libertarians actually accept governmental regulation over private tort liability? That seems to contradict fundamental libertarian priciples, but so did the Iraq war, and obviously a lot of “libertarians” seem to approve of that misguided policy.
Trial Lawyer
As for firearms manufacturers, if they merely sell their guns legitmately, they won’t face any liability. However, if gun manufacturers are deliberatly selling their guns to people who they KNOW will sell them illegally, why should the innocent victims of gun violence have to bear that burden alone? Obviously, the perpetraters of gun violence are involved in this as well; unfortunately for their victims, these perps tend to be “judgment proof” (too poor to pay for the damage they cause). The only benefit that comes from negating the gun manufacturers liability would be cheaper guns; guns would only be cheaper, however, because the manufacturers would not be internalizing their “costs.” In addition, gun manufacturers could easily add “default no-fire” safeties to their guns. These devices would save hundreds of lives (primarily childrens’ lives) each year, and would cost very little to add. Gun manufacturers know that their products cause tragic deaths each year, and know how to drastically reduce such accidents. Why should they be allowed to profit from others misery that they could have prevented?