Merck Wins Another Case

A federal jury in Louisiana has cleared Merck & Co. of responsibility in the death of a 53-year-old Florida man. Richard Irvin died of a heart attack in 2001, after taking Vioxx for less than a month. This was a retrial of the Irvin case, after a jury in Houston deadlocked on the decision in December. It's the second time Merck has been cleared in a suit over the drug, which the company withdrew from the market in 2004, and its first victory in a federal court. A Texas court found Merck liable in a Vioxx-related suit last August, while a New Jersey court cleared the company in November.

David Henderson and Charles Hooper made Merck's case last year. I ranted against the Merck jurors.

Comments

[Akira MacKenzie]

Damn corn syrup! Didn't that all come out in discovery???

[Lemur]

Keep the victories coming! I bought a ton of Merck when the stock fell to $31 - the market always over-reacts...

[Chad]

There is a particular political party that likes to cry that the other party always lets politics trump science. Yet here is another issue where the first party is doing just that, by protecting the worlds most wasteful legal system!

Our jury system simply needs to be reformed. It is patently obvious that the average Joe on the street cannot rightfully decide highly technical cases and cases that involve huge award values - and that is assuming we even get the average Joe. In reality, lawyers from one side or the other know they are full of it and deliberately weed out any juror with a brain.

Numerous studies have shown that people cannot accurately access low-probability risks. For example, many people are terrified of sharks, yet no one is afraid of bathtubs, which kill hundreds of times as many people. Trying to have laymen take stabs at this by "gut-instinct" is a recipe for disaster. Likewise, "gut-instinct" may work well for rewards of $10,000 or $20,000, which are numbers we are all familiar with and can feel, but gut-instinct is worthless when trying to decide between $100,000,000 and $200,000,000, which are numbers beyond the "feeling" of all but a few hundred people. In the latter case, some sort of systematic, abstract reasoning must be used, not "stick a bunch of zeroes on some random number", which is essentially the process we use now.

Science has show than the laymen is incapable of making rational judgements in such cases. This has been confirmed by numerous field studies. It is time we accepted this fact and have such cases decided by professionals trained in law, science, and economics.

[Milton]

Sometimes the site lets me post comments, and sometimes it doesn't. Am I in or out?

[V "Bill Lumbergh" Moose]

hi Milton, what's happening.....

we're gonna have to ask you to go ahead and repost. You see, the server is playing catch-up...

[amazingdrx]

Keep defending the rights of those corporate citizens! If real citizens want any of their rights back...incorporate!!

The right of corporate citizens to profit from death and injury is absolutely inviolable! (under the new revised version of the US Constitution.)

Neo-libertarianism rules!

[johnl]

The Vioxx kills people story is not so straight forward.

[Adam]

amazingdrx! are you really suggesting that, in this case and the other acquitals, a dozen people selected to sit on a jury all shared a pro-corporate bias that outweighed clear and convincing evidence that Merck acted with actual malfeasance? That doesn't even pass the snicker test, let alone the hearty belly laugh test.

[Mo]

Chad,
Ok, but who is going to determine these cases? The equally science ignorant judges? Hasn't the wisdom of crowds shown that the aggregate of laymen is relatively accurate. You have only complained about the current system without offering alternatives. That's not a good recipe for change.

The problem isn't the jury system, but the jury selection process. Limit eliminations for reasons of strong bias (membership to racist organizations, etc.) rather than having lawyers be able to have freebies that they will use to eliminate jurors that would question the validity of evidence or have significant knowledge in the field and the system will improve.

[mediageek]

Voir Dire is just French for jury tampering.

-Vin Suprynowicz

[Ken Shultz]

Keep the victories coming! I bought a ton of Merck when the stock fell 31 - the market always over-reacts...

...except for when it doesn't.

You can sell insurance to short sellers, AKA do covered calls, at a really nice price right now. The calls are sellin' great for PFE too. ...and sellin' covered calls is certainly less risky than just holding the stock. ...but how do I gauge the downside--where's the bottom? How do we know this won't go the way of Dow Corning or RJR? ...the risk exposure in those two instances didn't have a whole lot to do with reason, how do I know MRK or PFE will be any different?

...I don't think you can know. I think you're gambling.

[joe]

I don't get it, is this Lawyer's Weekly? Why is this a blog post?

Not exactly Kelo or Rauch, you know?

[Gay Ass Man]

I still do not like the idea of limited liability. It is a gay idea.

[Douglas Fletcher]

...I don't think you can know. I think you're gambling.

Don't worry, he's probably loading up on General Motors as we speak.

[s.m. koppelman]

That old Henderson and Hooper piece "made Merck's case"? More like "iterated through Merck PR's talking points". When I see a line like

they will be victims, not of Merck, but of an overly zealous and out-of-control legal and political system

in reference to the very kind of tort system libertarians are always saying should be the basis of settling disputes in the Platonic Movie-Western World to Come, little alarm bells go off in my head.

Then when I see, tossed in among what looks like a lot of very sensible, reasonable argument, a whale of a distortion like that bit on the numbers of people who die or are hospitalized due to GI problems caused by NSAIDs, the lights start flashing. Why the shift from incidence rates to counts? Maybe because the incidence rates are low given the billions of doses taken each year, so low that they'd put those Vioxx numbers look a little less benign, especially when people at high risk for GI problems are already regularly instructed by their doctors to take acetamenophen and avoid NSAIDs.

To review, which sounds worse?

(1) An increase in heart attacks and strokes that affects less than one percent of users, or

(2) Going from one colon-polyp patient in 133 having a heart attack or stroke over a period of time to one in 66 if Vioxx is added to their regimen?

The former is the way Henderson and Hooper stated it. The latter is another, less obfuscated way of saying the same thing.

A doubling of heart attack and stroke risk among a population that has few such incidents per capita is Not So Bad. A doubling among a population of older patients with other health problems including high icidence of already-deteriorating cardiovascular systems means a lot more strokes and heart attacks per capita.

I don't know much about the Irvin case and can't say whether or not this is a just outcome, and I do agree that it's a shame that Vioxx isn't available to people for whom the benefits greatly outweigh the risks, but if that Henderson and Hooper piece is as good and honest an argument as can be made on Vioxx's behalf, my instinct should it return to the market is to think it's at least wise to prescribe it a whole lot less often than it was being prescribed.

[joe]

Interesting Cathy Young piece on paid punditry in today's Boston Globe.

http://www.boston.com/globe

I mention it, because I doubt readers of this site will see it otherwise.

[Alec Bladwin, FAG]

Keep defending the rights of those corporate citizens! If real citizens want any of their rights back...incorporate!!

The right of corporate citizens to profit from death and injury is absolutely inviolable! (under the new revised version of the US Constitution.)

Because it's all about corporations acting all corporate-y and uh...uh...corporate America and stuff.

[joe]

Get it? He's a fag! Get it?

Ah, conservatism...

[Barbara Streisand]

joe,

"FAG" is the acronym of the Film Actors' Guilt, an association of public-spirited actors and actresses who are trying to make a better world, free the influence of evil corporations (EXCEPTION: entertainment industry corporations. EXCEPTION TO THE EXCEPTION: Fox).

FAG was smeared in the movie *Team America: World Police,* which portrayed us as loonies just because we worked with Kim Jong Il to make the world a peaceful place.

Curse you, Team America: We'll get even with all of you if it's the last thing we ever do!

[R C Dean]

Half the humor on this site is in the fake email addresses people use for their pseudonyms.

[e-mail] - comic genius!

[Matt Damon]

Matt Damon.

[mediageek]

"(2) Going from one colon-polyp patient in 133 having a heart attack or stroke over a period of time to one in 66 if Vioxx is added to their regimen?"

So Vioxx should be prohibited to everyone because people with colon polyps have an increased risk?

How about this:
If you have colon polyps, no Vioxx for you.

(Didn't read any of the articles.)

[Kim Jong Il]

Rerease the brack panthers!

[R C Dean]

To review, which sounds worse?

Perhaps a more relevant question would be, which is the most relevant statistic for setting policy?

(1) An increase in heart attacks and strokes that affects less than one percent of users, or

(2) Going from one colon-polyp patient in 133 having a heart attack or stroke over a period of time to one in 66 if Vioxx is added to their regimen?

If we are talking about setting policy for the entire universe of Vioxx users, clearly the first factoid is the most relevant. The second factoid is the important one only for that small fraction of Vioxx users who are being treated for colon polyps.

The former is the way Henderson and Hooper stated it. The latter is another, less obfuscated way of saying the same thing.

Actually, no. These two factoids say very different things. One assesses risk for all patients, one for a subset of all patients.

[TEABAG]

I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED I WANT TO BE TEABAGGED

[Steven Crane]

o rly?

[joe]

Barbara,

There is no "Film Actors Guild."

It's the Screen Actor's Guild, or "SAG."

[Kevin]

Joe:

For the love of God, rent "Team America: World Police".

[sage]

I like calling it the Film Actors Guild. Most people don't give it a second thought.

[thoreau]

joe, do you feer ronery being the onry person who's never seen "Team America: Worrd Porice"?

[anon2]

joe,

[This post is split into 3 because having 3 links gets my post quarantined 1/3]

Thanks for tipping me off to Cathy Young's article.

[anon2]

[2/3]

After reading it, I googled and found Iain Murray's article.

[eric mattingly]

Joe,

I don't see what the Young article has to do with the issue at hand. From what I remember, Reason covered the whole Merck thing because it illustrated how most people were irrationally willing to blame corporations for anything bad. The attitude that a corporation, by virtue of being a corporation, should get in trouble regardless of the strength of the case is completely unfounded-- at least from a libertarian perspective.

Now, and this goes for Amazingdrx too, it is also unfounded to assume that because someone may support a corporation they must be in said corporation's pay. If I may be honest, I find such arguments to be made in bad faith and inconducive to genuine conversation across ideological lines. I'm a libertarian, and I like Reason because it is a libertarian magazine. As a libertarian, I feel beholden to support the corporate wold against ignoramuses who are unwilling to acknowledge how personally responsible they are for the squalor of their own lives. Camus, I'm sure, has to have made a point about this somewhere or other. If you disagree well great, but it simply has no bearing on the argument as such to say that some people in some circumstances have taken money dishonestly thereby marring their criticisms or scholarship. Just my two cents of course, but it seems like you're trying to rile people up rather than engage in dialogue.

[anon2]

[3/3]

The difference in how they both presented Fumento's dismissal prompted me to read the actual Business Week article. Interesting contrast between the three.

[Kim Jong-Il II]

You wirr eventuary see Team Amelica. It is inevitabre. Inev . . . inevit . . . inevitabre!

[R C Dean]

joe, I'm sure Babs (or Alec Baldwin) would feel better if we added "SAG" after their names.

Given the current fashionableness of gayness, they probably wish everyone would add "FAG" instead.

[Phil]

Snide comment from joe about Trey Parker and Matt Stone, libertarians generally, and a movie he hasn't seen, all because he didn't get the joke, in 5 . . . 4 . . . 3 . . .

[mediageek]

Which is just too bad.

That puppet sex was HAWT.

/not really. But it was funny.

[Barbara Streisand]

"Barbara,

"There is no 'Film Actors Guild.'

"It's the Screen Actor's Guild, or 'SAG.'"

That's what we *want* you to think! We keep you in the dark while we scheme to conquer the world.

People . . . people who conquer the world . . . are the luckiest people in the world . . .

[Chad]

To Mo:

The "wisdom" of crowds also brought the Holocaust, Shrub, and the Dow Corning lawsuit. I doubt they make rational decisions all of the time, or even most in such highly technical cases. In this case, twelve is not a crowd.

I did so offer an alternative. In all product liability suits over a certain value, the suit should be immediately set to a class-action status (one trial is infinitely cheaper and more fair), and the judgement should be passed by a group of specially-trained, intelligent people with backgrounds in law, medicine, science, public policy, etc.

You aren't going to get this effect simply by fixing the current jury selection system. At best, maybe 10% of people really have the background and capability to decide these cases based on reason. You are not going to get a jury full of these by the random process we have now.

[Stevo Darkly]

There has been a lot of Merckin' around here lately.

(cueing Viking Moose ...)

[Mr. F. Le Mur]

...Fumento's dismissal (for not disclosing money from Monsanto)

FWIW, I don't pay much attention to anyone who accepts money from the gov't, an institution which is far more dishonest and partisan than any company I can think of.

[Ken Shultz]

Did someone suggest specialized judges? Ugh! ...That solution sounds like it might be worse than the problem. I'd like to see better juries, but improving that seems as much a function of improving people's tolerance for risk rather than a problem of jury picking. ...improving the average person's understanding of what reasonable expectation of risk might entail should be the goal, but how do we do that?

The jury system may not be perfect, but I still think it's better than all the rest. Legitimacy may require that people have the ability to insert their stupid opinions into the justice system. I suspect that as long as we have a free society, we'll have free juries and judges with the freedom to come to silly conclusions. ...It may just come with the scenery.

I think it was Cavanaugh that wrote something like, "Show me a society without any frivolous lawsuits, and I'll show you a totalitarian state." I might suggest a corollary, "Show me a legitimate jury system, and I'll show you a system with some really stupid juries."

[Ken Shultz]

Don't worry, he's probably loading up on General Motors as we speak.

Falling knives, on sale, aisle 12.

[joe]

Yes, thoreau. So ronery. I'll put it on my Netflix list.

eric, I know. Totally OT.

Sorry to disappoint you, Phil. You're really bad at that, btw.

[jb]

Actually, the facts of this debate are really mercky. But the vioxx of the people must be heard.

[eyeresist]

a) People are idiots. Therefore juries are idiots. So I'd rather be tried by a judge (unless I really did it).

b) Anything that hurts big pharma is okay by me. Those people are fucking pirates (as anyone with a big meds bill will know).

c) Why NOT legislate for "expert juries"? Just make a subset of science/math workers in the jury database, and call 'em up for stuff like this. The sample would be large enough to keep the system unbiased.

[s.m. koppelman]

I don't think anyone even from Merck has said the increased cardiac event risk affects polyp patients more than other Vioxx users. It just happened to be the subgroup of Vioxx patients selected to be the subject of the study in question.

The reason for the FDA's alarm and Merck's withdrawl of the product from the market was that in a population of patients in an age range and general state of health congruent with a large plurality of Vioxx users, the incidence of heart attack and stroke in a finite period went from one in 133 to one in 66. When risk doubles from 1 in 100,000 to 1 in 50,000, it's one thing. When it doubles from 1 in 133 to 1 in 66, it's another. This is a doubling of risk for people who are at high risk to begin with, and quietly adding it to the long list of all potential side effects on the package insert is arguably not adequate notice when distributing a memo to doctors or issuing an announcement to major medical publications would get the message out much more effectively.

Furthermore, looks to me like Merck's changes to the package insert and PDR with the table showing risk spread the incidence rate across all patients, lumping the short-term Vioxx users with no measured increase in risk with those who took it long-term and experienced a more pronounced increase in risk.

Given the two-pronged argument that (1) the legal system is killing business and that(2) quietly announcing dire news in 2-point type is legally adequate notice, you'd almost think the libertarian credo was legalisms for me, but not for thee.

Bonus essay question:

If I were to make a bunch of cupcakes, ship them to people and then discover later in the day that they were full of shards of glass, would it be adequate behavior on my part to make a note of it at the bottom of the terms and conditions page of my website, or would the notion of personal responsibility that libertarians supposedly fetishize compel me to do something more, like get on the phone and contact the people I'd shipped the cupcakes to?

[Ken Shultz]

b) Anything that hurts big pharma is okay by me. Those people are fucking pirates (as anyone with a big meds bill will know).

Well, buy one of the Pharma ETFs and get rich then. ...and people I know with chronic conditions would, I think, choose inducement for a cure over lower medication costs, hands down. ...Most of the ones I know are relatively young though.

If I were to make a bunch of cupcakes, ship them to people and then discover later in the day that they were full of shards of glass, would it be adequate behavior on my part to make a note of it at the bottom of the terms and conditions page of my website, or would the notion of personal responsibility that libertarians supposedly fetishize compel me to do something more, like get on the phone and contact the people I'd shipped the cupcakes to?

Glass shard cupcakes cannot be used for their intended purpose. ...and the likelihood of a glass shard cupcake causing damage is one in one, not one in a hundred and thirty-three or one in sixty-six.

However, yes, I think a firm has a responsibility to its customers to let them know about the risks of using its product. But I also think people should be allowed to make decisions about those risks. ...Surely, there are some people who would benefit from cox inhibitors, people who don't fit the high risk profile, for instance.

[Anonymous]

I'll bet Smacky never put glass shards in cupcakes.

[Vikling "Merkin" Moose]

whoops late on this:

merkinworld.com

merkin merkin merkin.

[Bonar Law]

Trial by jury is the Merck-an way.