Tuesday, August 08, 2006


Bad Science and Bad Law

Why does this not surprise me? We ought to know by now, bad science makes worse law, and junk science makes law beyond bad, but unethical, and perhaps criminal.

Instapundit links to this New York Sun article by Ted Frank, who explains why Merck might be wise not to settle with litigants suing over alleged health complications, injury, or death resulting from use of their product Vioxx:

Take, for example, the last case Merck lost, that of Leonel Garza in south Texas. Mr. Garza, who was said by plaintiffs to have taken Vioxx for three weeks, was a 71-year-old overweight smoker, with high cholesterol, decades of heart disease, and a history of a heart attack and a quadruple bypass, yet a jury awarded his survivors $7 million in "compensatory" damages, and punitive damages to boot.

But even that story understates how outrageous the verdict was. Mr. Garza never had a prescription for Vioxx. Mr. Garza's widow testified that Dr. Michael Evans gave her husband an eight-day sample of Vioxx in a brown vial, and that then Dr. Juan Posada gave her husband two more vials filled with fifteen pills each and told him to return in thirty days. Her testimony contradicted what she said at her pretrial deposition, but she argued that her memory had improved over the intervening time. The Garza family never produced these brown vials: Mr. Garza's son testified at trial he threw them away — though his trial testimony also contradicted his deposition testimony. In turn, Dr. Posada testified that he never gave out thirty days worth of Vioxx, and never gave Vioxx to Mr. Garza. Dr. Evans testified he gave out samples only in eight-pill blister-packs. Nevertheless, the jury bought the "brown vial" theory, and held Merck liable.

There were other shenanigans at the Garza trial; one of the plaintiffs for whom lawyers sought millions of dollars of damages for Mr. Garza's death was his daughter from a previous marriage who met her father only a few times.

Mr. Garza's case is hardly an exception. In the most recent New Jersey trial, Thomas Cona tried to become a "long-term" user by telling the jury that he had taken Vioxx for twenty-two months: he asserted that he only had seven months worth of prescriptions because his doctor gave him fifteen months worth of free samples. The Wall Street Journal reports that jurors in the federal Dicky Irvin trial were suspicious that Mr. Irvin had been taking several medications, but the plaintiffs "lost" all but the Vioxx. And the New York Times reports that, in the Alabama case originally scheduled to be the first Vioxx trial, the plaintiff's physical evidence of Vioxx usage consisted of a package manufactured after her husband died. (The parties agreed to a postponement on the eve of trial after Merck moved for, and the judge denied, summary judgment.) Plaintiffs dismissed with prejudice a federal case on the eve of trial under suspicious circumstances. So out of eleven cases that have gone to trial or almost gone to trial, there is a reasonable suspicion that plaintiffs faked Vioxx usage in as many as five of them. How many more of the tens of thousands of pending plaintiffs have similar flaws?

Bad science for sure makes worse law. Product liability law remains in shambles without tort reform. When civil liability cases can rely merely on non-specific and non-causal relationships between products and unfortunate circumstances, and not on definable cause and effect, any “liability” judgment is irrational.

A certain number of individuals in any population will have heart attacks, suffer strokes, become infirmed or die from any number of natural or unrelated causes.

That an obese man who smokes, with a history of heart disease dies of a heart attack should not only be anticipated, but render any judgment of secondary causation irrelevant from a liability standpoint.

For class action and other rapacious litigators, stepping on the gravy train merely requires that they find the survivors of any heart attack victim, and dig long enough to find some link to secondary or tertiary causation, however remote or tenuous. For some, even that minimal effort to find such causation is too much work, and such links too easy to fabricate.

This is a good argument for legislation placing this area of law out of existence, now.

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