Tuesday, August 23, 2005
"I didn't understand any of the medical evidence . . ."
. . . brags a Vioxx juror: "The same LA Times article has one juror singling out the fact that no senior Merck executives attended the trial; the Wall Street Journal ($) is even more explicit: 'The big guys didn't show up,' said [juror John] Ostrom. 'That didn't sit well with me. Most definitely an admission of guilt.' Is there a better demonstration how the verdict was the product of emotion, rather than reason? There are several thousand Merck lawsuits. Not even every senior Merck attorney can attend every single Merck trial. Is the company supposed to shut down so the executives can spend all their time as a full-time courtroom audience? Ostrom also proudly brags to the Journal how he didn't understand any of the medical evidence."
Update:
Catallarchy:
"That the jurors did not receive proper instructions (or didn’t listen to them) seems pretty clear to me. For one thing, jurors are allowed to ask questions of witnesses. If, as juror John Ostrom said, “We didn’t know what the heck they were talking about,” how could the jury find in favor of the plaintiff, especially for that amount of money, without asking questions until they did understand what Merck was talking about?
It’s ultimately the responsibility of the defendant’s attorneys and expert witnesses to make sure the jury understands their side of things. In this case it appears that neither did a very good job when it came to picking the jury, instructing the jury, or giving testimony."
The Republican:
"The seven men and five women on the jury that awarded $253 million to the widow of a Texas man who died from a heart condition that may or may not have been linked to the painkiller Vioxx didn't exactly focus on science during their deliberations.
They didn't, it would seem clear, focus on science during the trial, either.
'Whenever Merck was up there, it was like wah, wah, wah,' juror John Ostrom told the Wall Street Journal, mimicking the sounds made by the teachers on 'Peanuts' television cartoons. 'We didn't know what the heck they were talking about.'"
USA Today:
"Jurors are often swayed by sympathy or a slick presentation from an expert witness or attorney. Litigation becomes jury-by-jury roulette. An alternative worth considering is special health courts, where judges experienced in medicine try cases without juries. The judges would select impartial experts and write opinions that set precedent."
Jane Galt:
"This points up a larger problem, which is that even under the Daubert standard of scientific evidence, lay jurors are disastrously ill-equipped to cope with complex technical arguments. An acquaintance who is a securities litigator told me shortly before 9/11 that they try their damndest to keep cases out of court, because the issues are so complex that even the lawyers have a hard time getting a handle on them, and 'if you explain it to the jury, it takes six weeks, and they hate you more with every minute--and at the end, they still don't understand it.'"
TheAgitator.com:
". . . 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?"
ProfessorBainbridge.com:
"At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck's lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands."
Update 2:
More ProfessorBainbridge.com:
"Setting up courts to specialize in technical medical and scientific issues, as McCaughey proposes, thus strikes me as a perfectly plausible compromise that retains the benefits of the jury system (if any) while still being likely to constrain bad science and bad arguments."
. . . brags a Vioxx juror: "The same LA Times article has one juror singling out the fact that no senior Merck executives attended the trial; the Wall Street Journal ($) is even more explicit: 'The big guys didn't show up,' said [juror John] Ostrom. 'That didn't sit well with me. Most definitely an admission of guilt.' Is there a better demonstration how the verdict was the product of emotion, rather than reason? There are several thousand Merck lawsuits. Not even every senior Merck attorney can attend every single Merck trial. Is the company supposed to shut down so the executives can spend all their time as a full-time courtroom audience? Ostrom also proudly brags to the Journal how he didn't understand any of the medical evidence."
Update:
Catallarchy:
"That the jurors did not receive proper instructions (or didn’t listen to them) seems pretty clear to me. For one thing, jurors are allowed to ask questions of witnesses. If, as juror John Ostrom said, “We didn’t know what the heck they were talking about,” how could the jury find in favor of the plaintiff, especially for that amount of money, without asking questions until they did understand what Merck was talking about?
It’s ultimately the responsibility of the defendant’s attorneys and expert witnesses to make sure the jury understands their side of things. In this case it appears that neither did a very good job when it came to picking the jury, instructing the jury, or giving testimony."
The Republican:
"The seven men and five women on the jury that awarded $253 million to the widow of a Texas man who died from a heart condition that may or may not have been linked to the painkiller Vioxx didn't exactly focus on science during their deliberations.
They didn't, it would seem clear, focus on science during the trial, either.
'Whenever Merck was up there, it was like wah, wah, wah,' juror John Ostrom told the Wall Street Journal, mimicking the sounds made by the teachers on 'Peanuts' television cartoons. 'We didn't know what the heck they were talking about.'"
USA Today:
"Jurors are often swayed by sympathy or a slick presentation from an expert witness or attorney. Litigation becomes jury-by-jury roulette. An alternative worth considering is special health courts, where judges experienced in medicine try cases without juries. The judges would select impartial experts and write opinions that set precedent."
Jane Galt:
"This points up a larger problem, which is that even under the Daubert standard of scientific evidence, lay jurors are disastrously ill-equipped to cope with complex technical arguments. An acquaintance who is a securities litigator told me shortly before 9/11 that they try their damndest to keep cases out of court, because the issues are so complex that even the lawyers have a hard time getting a handle on them, and 'if you explain it to the jury, it takes six weeks, and they hate you more with every minute--and at the end, they still don't understand it.'"
TheAgitator.com:
". . . 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?"
ProfessorBainbridge.com:
"At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck's lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands."
Update 2:
More ProfessorBainbridge.com:
"Setting up courts to specialize in technical medical and scientific issues, as McCaughey proposes, thus strikes me as a perfectly plausible compromise that retains the benefits of the jury system (if any) while still being likely to constrain bad science and bad arguments."
Posted by Kevin |
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Comments:
CJD, I'm not sure how Kevin reviewing the trial evidence is relevent to the juror's admission that he didn't understand the medical evidence.
# posted by 
: 10:03 AM
: 10:03 AM
I was just curious if Kevin had ever looked at any of the evidence in reaching his conclusion that the verdict was incorrect and that these jurors were wrong.
What's the point anyway of arguing about the medical evidence? One earlier commentor made a bucnch of unsupported assertions, but other than that although questionable, the jury's conclusion is not unreasonable (or is it?). Can a non-anonymous doctor state catgorically that Ernst's death was not caused by vioxx because it doesn't seem that I've seen that kind of statement.
Besides reasonable people being able to disagree (see numerous entries on this blog), we find that even the evidence itself can be wrong like the JAMA review of major studies. You have to understand that the jurors were, by definition, innoculated against paying atttention to the medical studies since the process that got vioxx on the market was riddled with studies with interpretations that had to be revised and refined later. If (I haven't seen the tape or a transcript)the person who performed the autopsy allowed that she thought the death was likely caused by vioxx, once that tape was admitted into evidence, what chance did Merck have?
I think jurors should review the medical studies, but, based on the news reports of how the trial played out, only a doctor from Merck on the jury could have prevented this verdict. The only reason it seems such a surprise seems to be because pre-trial publicity characterized success for the plaintiff as such a longshot. Once the trial actually started then the stars aligned for them and it looked like everything fell in their favor.
Besides reasonable people being able to disagree (see numerous entries on this blog), we find that even the evidence itself can be wrong like the JAMA review of major studies. You have to understand that the jurors were, by definition, innoculated against paying atttention to the medical studies since the process that got vioxx on the market was riddled with studies with interpretations that had to be revised and refined later. If (I haven't seen the tape or a transcript)the person who performed the autopsy allowed that she thought the death was likely caused by vioxx, once that tape was admitted into evidence, what chance did Merck have?
I think jurors should review the medical studies, but, based on the news reports of how the trial played out, only a doctor from Merck on the jury could have prevented this verdict. The only reason it seems such a surprise seems to be because pre-trial publicity characterized success for the plaintiff as such a longshot. Once the trial actually started then the stars aligned for them and it looked like everything fell in their favor.
CJD - I believe that I opined that "the science was on Merck's side" and that "emotion trumped reason": two opinions that are not unreasonable.
Whether the verdict was "right" or "wrong" - that is not for me to decide. The jury made its decision.
Thanks,
Kevin
Whether the verdict was "right" or "wrong" - that is not for me to decide. The jury made its decision.
Thanks,
Kevin
How can one determine whose side the science is on or whether the jurors ruled on emotion or not if they didn't see the evidence the jurors did?
It's almost like diagnosing malpractice or the lack thereof from a newspaper article, isn't it?
It's almost like diagnosing malpractice or the lack thereof from a newspaper article, isn't it?
We can all agree on one piece of evidence that swayed both the jury, the american public and probably was THE decisive factor in this and most important American Judicial processes: Mark Lanier has a nicer ASS than the Merck litigant. The Stairmaster won out over Fact in this trial.
# posted by : 11:57 AM
: 11:57 AM
"I was just curious if Kevin had ever looked at any of the evidence in reaching his conclusion that the verdict was incorrect and that these jurors were wrong."
Kevin never said the jurors were wrong. How were they supposed to review evidence they don't understand. They did the best they could. It's the system that's wrong. Do you expect a surgeon to understand how your heating and air conditioning works?
Kevin never said the jurors were wrong. How were they supposed to review evidence they don't understand. They did the best they could. It's the system that's wrong. Do you expect a surgeon to understand how your heating and air conditioning works?
# posted by : 12:02 PM
: 12:02 PM
mbu,
Why is it so offensive to you that I ask the basis for Kevin's opinion? He claimed the science was on Merck's side and the jurors were swayed by emotion - which is what many of you think when the plaintiff wins (but not when the defense wins). Asking where he got that opinion is a pretty reasonable thing, I would think. Why do you disagree?
And yes, I would expect a surgeon to be smart enough to understand if my AC unit was installed correctly and caused damage to my house after having it explained to him by both sides. Just like I would expect them to understand police procedure in a murder case.
Why is it so offensive to you that I ask the basis for Kevin's opinion? He claimed the science was on Merck's side and the jurors were swayed by emotion - which is what many of you think when the plaintiff wins (but not when the defense wins). Asking where he got that opinion is a pretty reasonable thing, I would think. Why do you disagree?
And yes, I would expect a surgeon to be smart enough to understand if my AC unit was installed correctly and caused damage to my house after having it explained to him by both sides. Just like I would expect them to understand police procedure in a murder case.
Here's the take I would think a person who has never seen the evidence would have:
http://beldar.blogs.com/beldarblog/2005/08/the_first_vioxx.html
http://beldar.blogs.com/beldarblog/2005/08/the_first_vioxx.html
CJD, the pointoflaw quotes make a strong argument that, in this particular case, it doesn't matter whose side the science was on.
These quotes are a testament to the failure of lay juries to be able to ever understand the medical science behind malpractice cases. I can't imagine a context that would excuse some of the things these jurors said. There's a reason that even if they wanted to, most people can't get an MD or a PhD in biochemistry.
The fact that a juror would even consider something like the fact that the warning about cardiovascular dangers on the Vioxx bottle wasn't large enough for him (when such is strictly regulated by the FDA, as pointoflaw points out) is absolutley ridiculous. It doesn't matter if it was the smallest of considerations. If things like this (and that Merck executives didn't show up) were used as reasons by this jury to find against Merck then it is strong evidence that lay juries are incapable of applying the law when cases involve complicated scientific components.
As the pointoflaw quotes the Texas Supreme Court, "Reasonable probability cannot be created by the mere utterance of magic words by someone designated as an expert." Nor can it be created by the sum of executives failing to appear and Merck not printing warnings big enough for a juror's personal liking.
Anyway, even if the science is against Merck and they should be liable, it appears that this jury failed to find it in this particular trial. You might as well put a group of monkeys in a room and see if 10 out of 12 of them can all press the same lever.
Hopefully, retrial here we come.
These quotes are a testament to the failure of lay juries to be able to ever understand the medical science behind malpractice cases. I can't imagine a context that would excuse some of the things these jurors said. There's a reason that even if they wanted to, most people can't get an MD or a PhD in biochemistry.
The fact that a juror would even consider something like the fact that the warning about cardiovascular dangers on the Vioxx bottle wasn't large enough for him (when such is strictly regulated by the FDA, as pointoflaw points out) is absolutley ridiculous. It doesn't matter if it was the smallest of considerations. If things like this (and that Merck executives didn't show up) were used as reasons by this jury to find against Merck then it is strong evidence that lay juries are incapable of applying the law when cases involve complicated scientific components.
As the pointoflaw quotes the Texas Supreme Court, "Reasonable probability cannot be created by the mere utterance of magic words by someone designated as an expert." Nor can it be created by the sum of executives failing to appear and Merck not printing warnings big enough for a juror's personal liking.
Anyway, even if the science is against Merck and they should be liable, it appears that this jury failed to find it in this particular trial. You might as well put a group of monkeys in a room and see if 10 out of 12 of them can all press the same lever.
Hopefully, retrial here we come.
TXMed,
If I posted the take from the Plaintiff's lawyer on this case, I would expect you to take it with a grain of salt.
The guys at Point of Law, who work for firms that represent major corporations or think tanks that are funded by them, have posted the defense version, complete with selective quotes that make their case. They are lawyers, that's what they do - make the best case for their side.
I hope you recognize that Point of Law represents just ONE side. And keep your mind open until either you've heard the other side or reviewed the evidence for yourself. You may yet disagree, but it will be a fully informed disagreement.
If I posted the take from the Plaintiff's lawyer on this case, I would expect you to take it with a grain of salt.
The guys at Point of Law, who work for firms that represent major corporations or think tanks that are funded by them, have posted the defense version, complete with selective quotes that make their case. They are lawyers, that's what they do - make the best case for their side.
I hope you recognize that Point of Law represents just ONE side. And keep your mind open until either you've heard the other side or reviewed the evidence for yourself. You may yet disagree, but it will be a fully informed disagreement.
# posted by : 10:34 PM
: 10:34 PM
By the way, did the lay people on the Baycol jury get it wrong as well? Or were they just lucky and overcame their debilitating ignorance long enough to understand that the defendant was correct?
# posted by : 11:03 PM
: 11:03 PM
"The fact that a juror would even consider something like the fact that the warning about cardiovascular dangers on the Vioxx bottle wasn't large enough for him (when such is strictly regulated by the FDA, as pointoflaw points out) is absolutley ridiculous."
Actually, companies now post so many pages of dangers and side effects in the handout that comes with every prescription in order to avoid getting sued that it has rendered the information completely useless. Another result of the litigation craze in this country.
Actually, companies now post so many pages of dangers and side effects in the handout that comes with every prescription in order to avoid getting sued that it has rendered the information completely useless. Another result of the litigation craze in this country.
# posted by : 7:29 AM
: 7:29 AM
Jurors were not well treated by defense counsel it seems to me. I have seen no evidence defense counsel did any jury research, used any shadow jury, etc. Trial presentation is a science and an art. Plaintiff had a weak case but knew how to make the most of it, and did so. Used jury research and shadow jury to make sure it was likely to be understood.
The shock here is not that plaintiff won a close case (someone needs to win) but that the damages are off the chart. Place to change the law is relating to damages, IMO.
The shock here is not that plaintiff won a close case (someone needs to win) but that the damages are off the chart. Place to change the law is relating to damages, IMO.
The law in Texas is already changed relating to damages, as the ultimate verdict amount will reflect. Businesses have lots of lobbyists and cash to spend on legislators.
I would imagine that defense counsel was well prepared. Merck had to know the importance of this case as did their defense counsel. You don't pay $500+ an hour to be unprepared. I would be shocked if they didn't have their own jury consultants, mock trials, etc. But Merck's not exactly eager to reveal how much it spent and the tactics it used to lose.
Still, it's a little surprising that the President of the company couldn't be bothered to be there when everyone knew how high the stakes were.
I would imagine that defense counsel was well prepared. Merck had to know the importance of this case as did their defense counsel. You don't pay $500+ an hour to be unprepared. I would be shocked if they didn't have their own jury consultants, mock trials, etc. But Merck's not exactly eager to reveal how much it spent and the tactics it used to lose.
Still, it's a little surprising that the President of the company couldn't be bothered to be there when everyone knew how high the stakes were.
# posted by : 9:51 AM
: 9:51 AM
It's almost like diagnosing malpractice or the lack thereof from a newspaper article, isn't it?
LOL, Dr. Elliot does it here all the time.
LOL, Dr. Elliot does it here all the time.
# posted by : 10:20 AM
: 10:20 AM
...companies now post so many pages of dangers and side effects in the handout that comes with every prescription in order to avoid getting sued...
Actually they do so because it is required by the FDA.
Actually they do so because it is required by the FDA.
# posted by : 11:34 AM
: 11:34 AM
Christopher Seeger, the attorney who's going after Merck next, is on TV now. He's antagonistic, he's got a beard, he doesn't wear a tie. Not sexy like Lanier. Not that it matters his client was only on Vioxx 2 months, juries won't even remember that. Anyone want to wager he loses the case?
# posted by : 9:23 AM
: 9:23 AM
Maybe if you told us specifically what the claims were in both cases, whether the evidence will be similar, etc.
Oh, I forgot - you don't know any of that.
Oh, I forgot - you don't know any of that.
Just a random thought after reading this and other threads (and honestly not meant as a simple ad hominem):
CJD, I agree with you more often than not as far as the anti-jury slant on medblogs goes, but have you considered moderating your tone? You come off as an obnoxious jack-a$$ and people end up in shouting matches with you instead of seriously addressing your often insightful and incisive commentary.
As an aside, the recent AJPH supplement on science in the courts has some excellent write-ups by MDs and PhDs on scientific evidence and juries.
CJD, I agree with you more often than not as far as the anti-jury slant on medblogs goes, but have you considered moderating your tone? You come off as an obnoxious jack-a$$ and people end up in shouting matches with you instead of seriously addressing your often insightful and incisive commentary.
As an aside, the recent AJPH supplement on science in the courts has some excellent write-ups by MDs and PhDs on scientific evidence and juries.
Intern, I'm normally quite respectful of those who engage me respectfully. However, the various anonymouses are not those people.
I'm neither a lawyer nor a physician, although I worked for some of each group in the distant past. I have also served on two juries, one of them an aggravated DUI and another multi-count criminal case.
If I were on a jury in a med. malpractice case, and the science as presented was so muddy that we couldn't understand it, I would have asked questions of witnesses in an attempt to clarify things. If that didn't work, I think I would be inclined not to find for the plaintiff on the grounds that he/she had not proved the case. At the very least, I would not have supported that large an award, for any number of reasons, not the least of which would be that the case was too uncertain.
I was not on this case, have not reviewed the evidence, do not know the science, etc., etc., etc. I am turned off, however, by several of the statements made by jurors after the fact. They sound irresponsible, to me.
Okay, CJD and everyone else, take your best shot.
Post a Comment
If I were on a jury in a med. malpractice case, and the science as presented was so muddy that we couldn't understand it, I would have asked questions of witnesses in an attempt to clarify things. If that didn't work, I think I would be inclined not to find for the plaintiff on the grounds that he/she had not proved the case. At the very least, I would not have supported that large an award, for any number of reasons, not the least of which would be that the case was too uncertain.
I was not on this case, have not reviewed the evidence, do not know the science, etc., etc., etc. I am turned off, however, by several of the statements made by jurors after the fact. They sound irresponsible, to me.
Okay, CJD and everyone else, take your best shot.
# posted by : 10:41 AM
: 10:41 AM
