“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.”
“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 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.'”
“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.”
“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.'”
“. . . 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?”
“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.”
“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.”