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Commentary

A dangerous Vioxx verdict
Chicago Tribune, 8-24-05

The Tribune argues that the $252 million verdict in the Texas Vioxx case is disturbing because it showed the jury cared less about the facts and science of the case (did Vioxx cause Robert Ernst’s death?) than about sending a “message” to Merck. While the judgment may be overturned on appeal, and Texas caps punitive damages, the case shines an unpleasant light on America’s tort system—where the truth, it seems, is the last thing on jurors minds.

In the end, it apparently made no difference what the medical data proved. One juror dismissed the scientific evidence presented by Merck, saying, "We didn't know what the heck they were talking about." Another complained that Merck executives didn't attend the trial, as if that were evidence of guilt. The lawyer for Carol Ernst played shamelessly to the jury, suggesting they might be invited on "Oprah."
The jury ultimately agreed that someone needed to send a message to Merck—even though the company on its own withdrew Vioxx from the market in 2004 after a study found it could cause heart attacks, strokes and blood clots. But the message that drugmakers will get is not necessarily a healthy one. All drugs, including aspirin, have dangers. It's easy to forget that some 20 million people found Vioxx beneficial for the treatment of pain from crippling ailments like arthritis. After Merck pulled it off the market, those patients were forced back onto medications that many of them find inferior. An advisory panel for the Food and Drug Administration voted earlier this year not to ban Vioxx, based on its proven efficacy. But it's hard to see how Merck can afford to bring the drug back, given the risk of lawsuits. For that matter, it's not even clear the company can survive the coming avalanche of litigation. Whatever the future holds for Merck and Vioxx, though, it's clear that it promises fewer choices for patients in pain.

Whether the issue is asbestos litigation, childhood vaccines, or medical malpractice, the tort system has repeatedly shown that it is incapable of addressing complex scientific evidence with the rigor it requires. On our sister site Point of Law Ted Frank, from the American Enterprise Institute, says that the Texas “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.”



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