Some notes on comparable worth

Vioxx verdict seems outrageous

I haven't followed the case, and common sense suggests that one shouldn't evaluate an argument without hearing both sides, but I'll still state that the Vioxx verdict seems to be outrageous and indefensible. Economist David R. Henderson and Hoover Visiting Fellow Charles L. Cooper looked at the Vioxx issue and they explain the serious costs attendant on insisting that it be 100% safe. For a unique perspective from an economist/athlete, read the comments of Art De Vany.

But more than just the economics involved, I invite any lawyers among my readers to comment on a seemingly bizarre aspect of our legal system. According to the USA Today article linked to above, the jury awarded the plaintiff $450,000 in economic damages and $24 million for mental anguish, and also assessed Merck $229 million in punitive damages.

But Texas, where the trial took place, has a law that caps punitive damages "at twice the amount of economic damages and up to $750,000 on top of noneconomic damages".

My question: if the jury can do whatever the hell it pleases, what's the purpose of the law? If, as the article suggests, the law will require a later court to slash Merck's penalty, why wasn't the jury instructed that it must set the award and penalties in compliance with the law? If the judge was supposed to do that, but didn't, or the jury was supposed to obey that instruction, but didn't, why shouldn't he or they be sanctioned?

Reason #1,358 why I could never have been a lawyer.

UPDATE: My impression that the decision is outrageous is reinforced by the comments of Larry E. Ribstein and Ted Frank. (Also see Houston attorney Tom Kirkendall's post for lots more links and discussion.)

Ribstein: " . . . the plaintiff’s case featured resentment-mongering against executive pay and corporate profits, and exploitation of the average lay jury's innumeracy.  For example, responding to witness Gilmartin’s argument that the results of a study showing Vioxx users had six episodes of heart attacks or strokes to one for placebo users were not statistically significant, the lawyer asked:

have you got $6 on you? I'm going to give you a dollar and you give me the six. It is not statistically significant in the difference. What do you think, are you in or out?

The Door observes that his old statistics prof would have replied to that crap with an impassioned, "Lord, kill me now."


This is perhaps because the Ernst v. Merck case did have causation problems that made it virtually unwinnable for plaintiffs in a fair trial. Plaintiffs simply got around the causation problem by presenting a parade of experts who simply asserted, without any scientific basis, that Vioxx caused Ernst's death. . . .

Texas effectively adopted a Daubert-like standard in Merrell Dow v. Havner. Havner presented the same fact-pattern as Ernst: an expert testifying based purely on speculation and conjecture that a drug was responsible for causation. The Texas Supreme Court noted "Reasonable probability cannot be created by the mere utterance of magic words by someone designated as an expert." A reasonable appellate court is going to strike the expert testimony, and reverse the case for retrial, and might even grant judgment for the defendants. A reasonable appellate court is not going to countenance the mass of irrelevant and prejudicial testimony that was introduced regarding executive wealth. I'll let others evaluate whether Texas law would also reverse based on the procedural shenanigans pulled with a surprise witness introduced after the opening statements, but it seems rather pointless to have procedural rules against such "sandbagging" if they aren't invoked in this circumstance. It might have to get to the Texas Supreme Court before a reversal happens, but I think it will.

Great. In the meantime, who makes Merck's stockholders whole? Who helps the thousands of people who are suffering because of Vioxx's withdrawal, and who will help the millions more if drug companies believe they face higher expected damages from just doing their jobs?