Epstein to Jurors: Hands Off My Drugs!

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Richard Epstein rebukes the Texas jury that turned a tenuous causal connection and their resentment of pharmaceutical companies into an absurd (and illegal) quarter-billion-dollar Vioxx verdict aimed at "sending a message." Even reduced to a mere $25 million, says Epstein, the award spells doom for pharmaceutical innovation:

I would like to send my message to [plaintiff's lawyer Mark] Lanier and those indignant jurors. It's not from an irate tort professor, but from a scared citizen who is steamed that those "good people" have imperiled his own health and that of his family and friends. None of you have ever done a single blessed thing to help relieve anybody's pain and suffering. Just do the math to grasp the harm that you've done.

Right now there are over 4,000 law suits against Merck for Vioxx. If each clocks in at $25 million, then your verdict is that the social harm from Vioxx exceeds $100 billion, before thousands more join in the treasure hunt. Pfizer's Celebrex and Bextra could easily be next. Understand that no future drug will be free of adverse side effects, nor reach market, without the tough calls that Merck had to make with Vioxx. Your implicit verdict is to shut down the entire quest for new medical therapies. Your verdict says you think that the American public is really better off with just hot-water bottles and leftover aspirin tablets.

Ah, you will say, but we're only after Vioxx, and not those good drugs. Sorry, the investment community won't take you at your word. It realizes that any new drug which treats common chronic conditions can generate the same ruinous financial losses as Vioxx, because the flimsy evidence on causation and malice you cobbled together in the Ernst case can be ginned up in any other. Clever lawyers like Mr. Lanier will be able to ambush enough large corporations in small, dusty towns where they will stand the same chance of survival that Custer had at Little Big Horn. Investors can multiply: They won't bet hundreds of millions of dollars in new therapies on the off-chance of being proved wrong. They know they'll go broke if they win 90% of the time.

Your appalling carnage cries out for prompt action. Much as I disapprove of how the FDA does business, we must enact this hard-edged no-nonsense legal rule: no drug that makes it through the FDA gauntlet can be attacked for bad warnings or deficient design.

NEXT: Atta Boys

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  1. Considering how much money gets paid out to politicians to keep useful drugs out of our hands, pharma might as well spread the love around a bit more eh?

    Maybe if they run out of money to bribe congress with, the government will in turn will ease restrictions on prescriptions and innovation for the little guys.

  2. Some of the jurors’ comments were pretty pathetic, e.g.:
    “When they started talking all their science stuff, it was just like, wah wah wah (imitating the “adults talking during a Charlie Brown movie” noise). We didn’t understand a thing they were saying.”

    It’s pretty sad considering that the guy died of arrythmia and not a heart attack, and Vioxx has never been shown to cause arrythmia. But you know, those corporations, they act all corporation-y, in their big corporate buildings… and they make money.

  3. i wish someone would sue the FDA and not the pharmas. the pharmas may bribe and deal, but its the FDA that takes the money and lets the corruption transpire. the whole system is messed up. can’t wait till 2012.

  4. I’m very hesitant to deny citizens their day in court, and I would never think that if the government says it’s okay then it must be, but it is kinda ironic that drug companies can be sued out the yin-yang for selling drugs that the FDA has stamped with its approval.


  5. but it is kinda ironic that drug companies can be sued out the yin-yang for selling drugs that the FDA has stamped with its approval.
    Comment by: fyodor at August 23, 2005 11:01 AM

    Considering the FDA stamp of approval is the pharma way of strong arming competition and keeping money trickling into the political machine, I don’t neccessarily see it as a bad thing. If you work the system, at least have the decency to not act all offended when you get worked by the system.

  6. I really do not know much about the specifics of this case, but it was my understanding that the damages are related to Merck hiding adverse results and for advertising their product for things they knew it was not approved for — am I totally off base? What are preferred the mechanisms to disincentivize this behavior?

  7. theCoach,
    nope. It was a civil suit to determine whether or not Merck was liable for this man’s death. However, the jury felt like the company should have told about all the adverse effects, and even though the drug most probably didn’t kill the man the company needs to get a “message.” Whatever that is.

    In other news, the Treasury reaffirms its right to confiscate/freeze any financial instrument at any time, as well as sieze mining operations:
    Treasury can take anything it wants

  8. Unfortunately, Epstein’s analysis is a typical half-way analysis that is so full of holes that it discredits libertarians in general. I know – it is exactly this sort of analysis that kept me from embracing libertarianism for years.

    The problems with pharmaceutical innovation (such that they are) and the pharmaceutical industry in general run MUCH, MUCH deeper than even this wrong-headed verdict can illuminate. To pick on this incident as “what is wrong” completely distorts the picture.

    The problem starts with the FDA, runs through the AMA’s monopoly on prescription, through the RPh monopoly on dispensing, and eventually ends up in the general conclusion that “stupid consumers can’t be trusted to take informed risks” that lead to verdicts like this.

    The solution isn’t MORE legislation creating a brand new tort immunity. The solution is to allow Pharm companies to offer the drugs on their terms (in other words, limited to no liability) while simultaneously ending the government monopolies created by the NDA system and the patent system (and before people start blathering about innovation – there is absolutely no empirical evidence supporting the contention that patents are necessary to stimulate innovation, and plenty of evidence contra – see Posner’s Economic Basis of Intellectual Property, among others).

  9. Jesus, Randolph, that was a scary article. Sounds like the only property right we have left is the right to use our own blood–and I’m sure the government will take THAT away if it ever deems there a crisis in the blood supply.

  10. Apparently, Merck also had a terrible attorney working for them. Lanier’s presentation was all about trying to connect to the jury, while Merck broke out an exciting…Powerpoint presentation. The jurors probably slept through the science.

  11. quasibill,

    I sure can’t see where your prescribed (ha-HA!) solutions would stray from a libertarian program. Only they leave entirely unanswered the question what can realisticly be done within a political climate where all your ideas have chances hovering between slim and none. Although just to reiterate, I hesitate at the idea of tort limitations myself.

  12. Perhaps to excite and enthrall the audience, ahem… jury… the litigants could put their arguments to the sweet airs of a Gilbert and Sullivan production. “I am the very model of a modern Pharma Company,” or something to the like.

    Oh dash it all, we aren’t even sophisticated enough to enjoy operetta anymore!

  13. Texas jurors are complete idiots. They reflect the deficiency of the education system. Texas has monstrous bureaucracies administering the public school systems. Much of the funding is wasted on worthless suits who enforce draconian rules of conduct. Combine this with a “Bubba” culture that is profoundly anti-intellectual, a president who shits on science, and a complete disregard for economics; and you have the perfect breeding ground for absurd verdicts such as the Vioxx case.

    Big Pharma should be able to sell their products with no liability whatsoever (provided they manufacture a consistent composition for the drugs). The public should be fully informed of the drug testing results and usage history. Then individuals should be personally responsible if they choose to use the drugs. Prescriptions should not be required either. The patients should seek advice from their doctor, but the ultimate responsiblity should not be delegated.

    This should reduce the operating costs for the drug manufacturers. Their patent rights should expire after a much shorter period (say 5 to 7 years) to allow for open market competition.

  14. It’s pretty sad considering that the guy died of arrythmia and not a heart attack, and Vioxx has never been shown to cause arrythmia.

    If the guy had died of a heart attack, then the verdict would be okay with you, Randolph? Would it be okay with Professor Epstein? Are we really dealing with a causation-in-fact issue here?

    I take Epstein very seriously on legal matters, but when he starts opinining on how safe he thinks a reasonable senior thinks FDA-approved drugs are, I think he is going outside his area of expertise. I have my own COX-2 relatives. I talk to them. I know what they think now and I remember what they thought 2 years ago. This may not put me any closer to the reasonable man than Epstein is, but it means I really don’t particularly need his input to decide how the masses feel about new style drug marketing and their perceptions of the health risks they believe they are taking when they put a prescription pill in their mouth.

  15. fyodor,

    I guess I’ve just come to the conclusion that on certain topics, no ‘realistic’ solution is even an improvement, let alone a solution.

    A new tort immunity will do nothing to change the dynamic that this verdict represents, and in fact, will most likely just reinforce it. Why? Because now we will have legislative ‘proof’ that even juries are too stupid, after receiving the mountains of evidence they receive, to determine what is an appropriate risk. And once that’s established, we’ll be one step closer to having our nanny state make every important decision for us.

    If someone could suggest a ‘realistic’ alternative that would move us in the opposite direction (i.e. – encourage the notion of personal responsibility and empowerment), I’d support it. I just haven’t seen one yet.

    And the problem with ‘compromising’ in the fashion that Epstein has is that you end up looking like a hack for one party or the other and losing curious onlookers who may have some sympathy for the libertarian position. Again, I’m speaking from experience on this phenomenon – I was turned off by many libertarian ‘pundits’ until I happened to read some Rothbard. Until then, I just saw libertarians=Randians=really obnoxious Republicans.

  16. Fact-finding law prof,
    No, it wouldn’t have been OK. There would have been a much clear case for Merck’s liability if the man had died of a cardiac event that Vioxx had been shown to cause. Chances are the damages would have been too high (whatever that means…) but at least it would have been somewhat justified.

  17. The fine was appropriate for a civil procedure, but Merck needs to be put out of business, period, just like human killers need to be prevented from killing again. We need a national “three strikes” law for homicidal corporations.

  18. Randolph,
    You say “even though the drug most probably didn’t kill the man the company needs to get a “message.” Whatever that is.”

    The message is that reckless endangerment is not acceptable to citizens even if the thoroughly co-opted gov agencies are too servile to make criminal corporations pay any menaingful price.

    Do I applaud the jury’s finding Merck guilty given the doubtful case, no. Do I feel better that the civil justice sytem can provide some disincentive to corporate scumbags when the Clinton/Bush Admins don’t give a fuck about protecting citizens from them? You bet.

  19. I take comfort in the fact that I can still respect Eric’s right to hold and express his opinions, despite the fact that I respect neither Eric, nor his opinions.

  20. My view of Merck is that it is actually a net-positive company, producing some of the most important medecines for very sick people. If we follow eric’s prescription then we have to shut down every auto company, airline carrier, and cigarette and alcohol producer

  21. Gee f*cking whiz, Eric; if Vioxx had contributed to the man’s death then it would be “reckless endangerment” (again, a more-or-less meaningless term). However, Merck had nothing to do with the poor guy’s death.

    If I think murder is bad, and I accuse an innocent man of a murder, and he is convicted because the jury wants to “send a message” to murderers, then justice doesn’t matter any more.

  22. It’s pretty sad considering that the guy died of arrythmia and not a heart attack, and Vioxx has never been shown to cause arrythmia.

    He also took Vioxx for only eight months, and no study has shown any cardiovascular effect of Vioxx before eighteen months.

    Pretty pathetic.

  23. Since the O.J. case, I have believed that if a jury can be demonstrated to not understand the science involved in the presentation of evidence, the case should be immediately declared a mistrial and a new jury empaneled.

    Even up to, and including, the verdict and assessment of damages.

    When someone says, ‘All that science stuff was just blah blah blah,’ what they’re saying is: ‘I am not competent to offer judgement in this case.’

    Of course, I feel this way about legislators and judges as well. If you can’t grasp the fundamental scientific issues being decided upon, you should not be making the decisions.

  24. isildur,
    Unfortunately, the people in that jury are your “peers.” And there are hundreds of thousands of them…

  25. Wow, Epstein sounds like he’s gonna HACK a vein, or HACK up a lung, or HACK up a storm or HACK down a forest. Did he make a point there or was it just some pointless fulmination about how much he loves sucking corporate cock?

    Somebody check the tall buildings at U Chicago, Epstein might be up there with an Uzi as we speak.

  26. Randolph, I’m no expert in the constitution, but since Merck was on trial, shouldn’t it be judged by a juries of its peers (chemists and cardiologists) rather than that of the Walmart clerk?

  27. Randolph, I’m no expert in the constitution, but since Merck was on trial, shouldn’t it be judged by a juries of its peers (chemists and cardiologists) rather than that of the Walmart clerk?

    In no case should Merck be judged by people who use Merck products extensively in their jobs. *That* would be a clear conflict of interest. You can probably see why. The Walmart clerk would probably be okay because Walmart sells a lot of stuff besides Vioxx.

  28. He also took Vioxx for only eight months, and no study has shown any cardiovascular effect of Vioxx before eighteen months.

    See, Mike P., when medical studies show things, they need to show the things they show with some degree of confidence. If a study finds that there is a 51% chance that a drug causes some thing, then the study is considered inconclusive and probably won’t even be published.

    Funny thing about civil court is 51% will do. That is why civil juries cannot (legally) demand the kind of studies you are demanding.

  29. There sure are a lot of new Departments at Reason lately…

  30. I guess that is the problem with cases involving complicated technology; the only people who truly understand are already wedded to the industry.

    then it just comes down to which sides lawyer entertains the jury better, rather than deciding issues of fact and law. sad

  31. As a native Texan, may I just say that Crushinator…..is right on all counts. Not all Texans are dumbassed anti-intellectuals (being a bubba’s got nothing to do with; there are lots of smart, intellectually inclined bubbas) but it does seem that only the dumbassed anti-intellectuals actually get on to the juries. Is it because the non-dumbass, pro-intellectuals successfully duck jury duty? Probably (guilty). And plaintiffs’ lawyers are really good at picking out the dumbasses during voir dire. And in this part of Texas (I’m next door to the county in which the trial was held), juries lean waaaay over in favor of “little people” plaintiffs against the big bad greedy corporations.

    Just this week the Texas Lawyer profiled one of the good old boys from round here who made a killing in the Texas tobacco settlement; while not exactly fawning, the article was quite flattering. Another lawyer who stuck up for the little guys who were forced by the evil tobacco companies to smoke for decades and were never in all that time warned about the health consequences.

    I find the whole thing really depressing. Can’t take cough medicine, can’t take cold medicine, and within the next 10 years I expect the pharmaceutical companies to stop trying to make anything stronger than asprin. How long till they lock up asprin behind the pharmacists’ counters?

    And he’s right about the school system as well. Don’t get me started on that one.

  32. I guess that is the problem with cases involving complicated technology; the only people who truly understand are already wedded to the industry.

    If the multibillion dollar drug industry had more than a handful of independently run companies, then this wouldn’t be such a problem. I guess that is the price we all pay for having such an unbalanced “market” and its associated economies of scale (such as they may be).

  33. not only that, but almost every single top tier academic research professor is either a paid consultant or grant recepient from big (or small) pharma

  34. Calliope,

    “If we follow Eric’s prescription then we have to shut down every auto company, airline carrier, and cigarette and alcohol producer.”

    Corporate charters were revoked routinely in the first century of the U.S. ( if involved in serious crimes). It causes momentary disruption and creates a strong deterrent that tax-deductible fines do not.

    If Ford were put out of business after its executives caused (I forget the number) deaths by producing the deadly Pinto and lying about its danger, its machines would not go quiet–the plants would be liquidated and sold to other investors, who would produce cars as well.

  35. Eric:

    “Corporate charters were revoked routinely in the first century of the U.S. …
    If Ford were put out of business after its executives caused (I forget the number) deaths…”

    Then you’d be punishing Ford’s employees, suppliers, creditors and shareholders, instead of punishing its executives.

    When the UAW, TRW, PIMCO, and CalPERS all complain to you, what are you going to tell them?

    “Oh, don’t sweat about losing your jobs and supply contracts with Ford, some other company will probably hire you and buy the stuff your factory makes… until then, just suck it up. As for the Ford bonds and shares in your pension portfolios, don’t waste your time worry about them because they’re now worthless, and therefore no longer worth worrying about…”

  36. RussR,
    Stockholders are not entitled protection against losses. Rather, they bear the risk of losses. That’s why they are shareholders and not creditors. Whether or not the employee’s entitlements (if any) are relevant in properly considering the Pinto hypothetical, shareholder sob stories are irrelevant. Even if the retirees have granpa’s twinkle in their repective eyes and bake cookies as wonderful as nana’s.

  37. Russ,

    Employees pensions are the first thing to be funded by the liquidation. Next, if you are an investor buying Ford’s factory, are you going to:
    A. pay a premium to lure most workers form other manufacturers
    B. Train unskilled workers en masse
    C. keep the same workers on the job?

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