Megan McCardle has some very disturbing commentary on the $259 million verdict against Merck, maker of Vioxx. As it turns out, the plaintiff died of heart arrythmia, a condition that has never been linked to Vioxx.

The jury didn’t care:

Merck argued that Vioxx couldn’t have caused Mr. Ernst’s death because, according to his death certificate, he died of an arrhythmia or irregular heartbeat, not a heart attack. While scientific evidence suggests Vioxx can promote blood clots leading to a heart attack, no data have linked the drug with arrhythmias.

Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.”

Simply stunning. Apparently, one factor in the jurors’ decision was outrage over the fact that the CEO of Merck didn’t attend the trial.

As McCardle notes, proving causality in liability cases often requires a grasp of science most lay juries simply aren’t capable of, though in this case the problem seems to be that the jury didn’t even feel like trying. Complex securities fraud cases can be even worse. And what do we do when a rash of suits moving ahead of the science forces a company to settle (settling making more economic sense than fighting mutliple suits in multiple venues) — as Dow did in the breast implant cases — and science later conclusively shows the company wasn’t liable?

I don’t have anwswers.

This entry was posted on Monday, August 22nd, 2005 at 6:38 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.