Ambush in Angleton
By RICHARD A. EPSTEIN
August 22, 2005
CHICAGO — The most memorable observation in Frederick Wiseman’s
film, “The Thin Blue Line,” runs like this: “It takes a good Texas
prosecutor to convict the guilty … and a great Texas prosecutor
to convict the innocent.” Today, this wry remark applies to
plaintiffs lawyers, now that Mark Lanier, down in Angleton, Texas,
has drawn blood from Merck for its former blockbuster drug, Vioxx.
Forget the jury’s whopping quarter-billion-dollar verdict in Ernst v. Merck, because it’s cut 90% by the caps that Texas law places on
punitive damages. Still, where do $25 million in actual damages come
from? Robert Ernst died in his sleep, without pain and without
medical bills. His lost income as a Wal-Mart employee was small. But
the $24 million price tag for anguish and loss of companionship to
his widow Carol is off the charts. And for what?
Not the death of her husband, whose arteries were 70% clogged and who died, so Dr. Maria Araneta’s death certificate states, of arrhythmia, or irregular heart beat. No mention of any heart attack. But in his
dramatic eleventh-hour maneuver, Mr. Lanier whisked Dr. Araneta back
from the Arabian peninsula to testify conveniently that she really
thought that an undetected blood clot had caused the death, but had
been dislodged in the last-ditch efforts at resuscitation.
Pretend that this new account is true, and it still doesn’t show that Vioxx caused the blood clot. Long before Vioxx, people died of heart
failure from all sorts of causes, including physical exertion and
dehydration. That second causal link to Vioxx was not made even if
the first one to a blood clot is generously presumed. Carol Ernst’s
lawsuit should be DOA right here, but a clever set of jury
instructions allowed the jury to say that Vioxx may have been a
contributory cause of death.
By what odds? Merck’s clinical trials showed an elevated risk of
heart attacks but only in persons that took Vioxx in heavy doses for
intestinal polyps for 18 months or more. Ernst took Vioxx only for
eight months. In post-trial interviews, the jury members revealed
their anger that the company didn’t show “respect” for its customers
by telling the truth about Vioxx’s risks. And they clearly were moved by Mr. Lanier’s expert bashing of Merck’s medical employee, Dr. Nancy Santanello, who struggled to explain how Merck tried to show the efficacy of the drug in response to criticisms of it.
All this goes to show that physicians under the gun make lousy
witnesses, which we already knew. To understand the Angleton verdict, one would think that Vioxx were the moral equivalent of mustard gas.
But in truth, we should be grateful to any firm that speeds its
product to market when its anticipated use promises many more
benefits than adverse side-effects. Merck should not apologize for
pushing hard to win quick market acceptance; before Vioxx was
withdrawn, countless people with chronic pain were able to get on
with their lives. Now these folks are left far worse off because of a double whammy: a Food and Drug Administration that yanks too many
drugs off the market because it has no idea how to evaluate risk, and individual jurors who think it is their solemn duty to “send a
message” to the drug companies on whose products we so desperately
So, in return, I would like to send my message to Mr. 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
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. In
plain English, Mr. Lanier, you’re out of court before you make your
opening statement. You’ve already proved beyond a reasonable doubt
that the fancy diagrams that university economists use to explain why the negligence system maximizes social welfare is an academic
delusion that clever lawyers use to prop up a broken tort system.
So where does that leave Merck? Perhaps in Chapter 11, where this
madness may be brought to a halt.
Mr. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Peter and Kirsten Bedford
Senior Fellow at the Hoover Institution, has consulted extensively
for the pharmaceutical industry. His book on the industry will be
published next year by Yale University Press.