Asymmetrical Information

It sounds to me like Merck simply put on a bad case. Keep in mind that under Texas law damages are capped to 1.6 million. So any cartoony number thrown out there is automatically reduced. Additionally this doesn't change the fact that Merck stacked the deck during the clinical trials. Give this a read

come on. these evil drug companies are trying to make money by exploiting peoples desire to live without pain. surely some brave 'erin brokovich' must stop them....

seriously though, you might be right that the jury system might need a modification, such as a down-selecting for scientists and engineers on such complex cases (whom lawyers hate to have on the jury because they put too much weight on 'facts' rather than lawyerly persuasion)

the best paid people in the legal profession are jury consultants.... for good reason, apparently.

The jury system was designed in an era of generalists, before even the invention of forensic evidence. Juries were generally being asked to rule on things they understood well--theft, infidelity, property rights, murder. Now they're being asked to rule on things far outside of their experience (and in some cases, outside of their cognitive ability)...

I'd like to try advancing this idea a little bit.

I think most specialized fields are haunted by bits bit of common sense that fail the laugh test:

• Radio signals from cellular phones are dangerous (but less so than shining a flashlight at your head)
• Solar power promises cheap, clean energy (if you don't mind massive energy costs for production, and raw materials toxic enough for use as chemical weapons- google ARSINE)
• Living near a nuclear reactor is unnerving (but 99% of the radiation we absorb comes from cosmic rays. Sailors on nuclear submarines, who spend months at a time less than 100 yds away from a critical nuclear reactor absorb less radiation than you or I do-- they have a few hundred feet of water over their heads to protect them from the sky.)
• We should make all our cars and trucks more fuel-efficient (and even if that's impossible with today's chemical and materials technology, we should keep repeating this incontrovertable fact, so when the technology advances, as it inevitably does, we won't have to remind everyone that we've been right about this all along)
• In another hundred years, Moore's Law will give us FEMTO-technology! (It's not a law of nature)
• There are some holes in contemporary evolutionary theory, so we should keep an open mind about intelligent design. (You can write an entire book on this subject even if you're completely ignorant, and plenty of people do)

A person might have an area of expertise, but every area of human knowledge has experts, so in a society like ours (where the technology and the economy are scientistic), we all have to trust the competence of unseen experts in just about everything we do.

The problem is that our reasons for doing so are necessarily hueristic. I trust my dentist "does it right" because he's got skills that were developed by the same process that makes cars that go fast and airplanes that stay up. But it would be impossible to PROVE the validity of any of these things to anyone without giving them sufficient information to make them experts in their own right. Worse, it's just as impossible to debunk even the most outrageous ideas.

TinfoilHat: My cellphone gave me cancer
CellPhoneGuy: That's scientifically impossible.
TFH: How do you know, smart guy?
CPG: Quantum Mechanics says it so.
TFH: Well then, that clears everything up.

So in the end, a society must either organize itself such that EVERYONE is an expert on EVERYTHING (no one is special), or make some value decisions about what kind of experts ought to be given special status AT THE EXPENSE OF THE ORDINARY CITIZEN. And now we've got a new slant on the old Libertarian Question, which can be profitably rephrased in lefty Foucault-speak: To what extent are privileged forms of discourse necessary in a free and functioning society? (Hint "not at all" is only okay if you're going back to nature)

An example to close:
Newton's Principia Mathematica, published in 1689, made a strong philosophical argument that the world was an orderly place where rational explanations were more likely to be right than supernatural ones. By 1715, despite the European peasantry's continuing preoccupation with witchcraft, actual trials had become very rare because local magistrates (all well-educated) refused to prosecute.

The proof that Mr. Ernst died of arrhythmia came from the death certificate. That certificate was prepared by a patholigist, Dr. Maria Araneta, who conducted the autopsy.

Who testified that it was more liekly than not that Mr. Ernst died of a heart attack, caused by a blood clot? None other than Dr. Maria Araneta.

In my view, the evidence of causation was tenuous but was barely sufficient for rational jurors to conclude that Mr. Ernst died of a heart attack caused by a blood clot due to the effects of Vioxx. An appeals court may very well disagree.

As to the ability of jurors to understand complicated facts, I have never heard any tort reformer complain that a defense verdict was caused because the jury just didn't understand those oh so complicated facts.

Where are the very complicated facts in the case? Science has shown that Vioxx causes heart attacks but has not shown that it causes arrhythmia. Even I can understand that.

I understand that some think that it would be a better world if only doctors could be on juries in suits against doctors and that only security lawyers could sit on security cases.

The grief of a widow is a very complicated phychological condition. Does that mean that only widows should sit on cases juries deciding wrongful death cases? Where will we find all the widowed scientists to sit on all the juries deciding which people Vioxx killed and how much the damages should be.

Judges need to be better gate keepers. If there is no evidence that VIOXX could have caused the death in question, the judge should have prevented the case from coming to trial.

Even when there is evidence the defendant may have contributed to the harm in question, we need to limit liability to ECONOMIC damages. My position does NOT result from a lack of sympathy for the pain someone must feel at the loss of a loved one. I am sure it must be horrible. However, it's also impossible to measure, and, if we are going to use governmental power to extract property from our fellow citizens, we should do so ONLY when it's possible to do so with some precision. We should not trust unrestricted use of governmental power to settle scores.

Finally, if we feel it necessary to punish someone for wrong doing (the purpose of punative damages), that should be up to the legislature. If we have not seen fit to make something against the law, we should not allow juries to punish what may have been harmful but lawful behavior.

It was ignorance combined with manipulation. They won because Mark Lanier hired a PowerPoint god to make his presentation

http://www.beyondbullets.com/2005/07/beyond_bullet_p.html

But you'll never admit that the people who supported the Iraq war are gullible morons. Take a look at Thomas PM Barnett, a widely respected expert on Iraq among the neocons, who I hear is also a PowerPoint god. That Iraq PowerPoint presentation sure turned out well.

http://www.command-post.org/nk/2_archives/018600.html

But you'll never admit that the people who supported the Iraq war are gullible morons.

For much the same reason that war opponents will never admit to being lovers of fascism who derive pleasure from the knowledge that America's enemies are alive and well. Because it isn't true, for most of them.

I mean, seriously, you people need to get a grip. If nothing else, I'd think you would refrain from calling, for example, Bill Clinton a "gullible moron".

Being a law clerk in a trial court for a number of years taught me, among other things, not to trust press reports of trials. There were times I seriously wondered if the reporters had been in the same courtroom I was in. Don't forget, they aren't experts in the fields in question either. And here's a secret: they don't always sit in for the full day. They're in and out and on the phone and they get recaps from the lawyers at the end of the day.

I agree with Brian that it is quite possible Merck simply put on a bad case. The tip-off: "This case was widely viewed as a slam dunk for Merck." Sometimes civil defense lawyers get so confident of their cases that they don't try as hard as they should. It's not common. Since defense lawyers bill by the hour, they usually overwork their cases, but that doesn't mean they work them correctly.

I've heard that the infamous McDonald's coffee case was lost by bad lawyering on the part of the defense. I don't know, but I can believe it as easily as any newspaper account.

Btw, I've never seen a jury hold against a company that the CEO didn't attend trial. However, in nearly every case involving a large company, I've seen the defense lawyer ably explain why certain company officials couldn't attend and get the jury's buy-in during jury selection.

None of that is to say juries don't screw up sometimes. They're human too. It's just really hard to tell without having sat through the trial yourself.

Jane’s comment about the jurors’ inability to comprehend these types of cases is right on point. Just look at the energy the attorneys and their cohorts themselves put into making sense of the issues in the first place.

Professional “expert witness” service firms out there like Analysis Group, LECG Corp, and others provide a great example of what goes into the hot business-headline cases of today (securities litigation, accounting fraud and the like). These firms are comprised of industry experts, who are already supposed to be the almighty gurus, and whom law firms hire to sit on the stand and provide their opinions on complex matters in cases. These people are by definition the most knowledgeable in their relevant field, and even they struggle to come to conclusions. This is so anticipated that the firms supplement the experts with teams of PhDs, MBAs, and anyone else they can find with insanely long lists of acronyms after their name. Then they pump them up with instant coffee, cram them into outdated file rooms for 15 hours a day, provide them with the best research tools available to mankind, and lock them there for months. Sometimes even years.

These overly educated academics crunch data, read thousands of pages of literature on the relevant topics, analyze literally millions of company emails and memos dug up during the attorneys’ discovery process to get an understanding of the facts and come to logical conclusions about the case issues. If the pros can’t make a clear-cut decision, then how can Joe Schmo Juror with his Associates Degree in Interior Design be expected to?

But then again, maybe it’s not really the jurors’ fault after all. They say you don’t really understand an issue until you can explain it to a three-year-old. By the time the attorneys and their experts reach the trial date, their brains have become bloated with intertwining logical arguments, Bates numbers, authoritative guidance, and entirely memorized spreadsheets. And yet this team, through the voice of the expert witness, is supposed to spew the story to the jurors in “layman’s” terms. No doubt this is one of the hardest parts of the job. Yet many times this communication piece is left as an afterthought to wait until the very end of preparation.

Maybe the little motto about the three-year-old is what attorneys should use to motivate them through the entire process. After all, it was a surprise to no one that the Merck trial wouldn’t have a jury made up of cardiac surgeons. Perhaps if they did a better job of communicating to their audience the reaction would have been different, and jurors would be talking more about the issues that were made clear to them instead of Oprah.

Dan,

If you look closely at the evidence there is a well hidden lesson in the Iraq war about our political elites. Either Democrat or Republican.

"Where are the very complicated facts in the case? Science has shown that Vioxx causes heart attacks but has not shown that it causes arrhythmia. Even I can understand that."

Obviously not very well, because science has not in fact shown that. What it's shown is that, in people who are _already_ at substantial risk for a heart attack, Vioxx may further increase that risk.

That's plenty to make it contraindicated for folks with histories of heart trouble or other risk factors. (And given that it's an arthritis drug, that certainly would cut out a big part of the potential market.)

Now, in the specific case of Merck, there may be facts in the history which make them legitimately liable under a "failure to warn" theory. Or at least it's a question that's worthy of serious consideration.

But to say that "Vioxx causes heart attacks", implying a causal relationship as tight as, say, smoking and lung cancer, is to seriously misstate the facts. Moreover, if that's the impression that the jury got, I can't blame them for finding against the company.

The point about jurors being unprepared to grasp the technical aspects of cases they are called upon to judge is perhaps a valid one, but as Huxley's famous question goes, What is your alternative?

In the present context I interpret that to mean that although the system may not be the only and/or best one possible given an unlimited scope of idealization, many of the plausible alternates will contain elements (valid or otherwise) that some will simply refuse.

To name one example, how will we find scientists and engineers that (a) don't have a conflict of interest in the matter they are called upon to judge and (b) can be convinced they owe a greater debt to jury duty then whatever they tried to get out of last time?

Most such persons who enjoy that kind of work probably already earn money in some field of scientific or engineering forensics and perhaps associated consulting as expert witness, meaning one of the attorneys will throw that party out of the selection off the bat. The rest of the called jurors from technical backgrounds have incentive to get out of jury duty for the same reason everyone else does: they don't enjoy it and have other things to be doing. Many types of scientific and engineering projects can suffer greatly if a key person is suddenly dragged away for several days (or weeks).

Jane,

I think you are perfectly right. But as one of the comments says about support for Iraq, the inability to process information correctly impacts a lot of areas of our lives.

I think (maybe just hope) that this verdict, at least the amount awarded, will be overturned.

Perhaps folks can agree that scientists, engineers, etc., while not making up the entirety of juries shouldn't be excluded from them either. Most lawyers I've spoken to confirm the point Jim made: the technically proficient need not apply. Or perhaps the defendants, in their role as such, ought to be given the option of finding by trained technicians.

I wonder how many tens of thousands of dollars Merck spent to pick this jury. And I wonder how many tens of thousands of dollars Merck will spend maligning this jury and blaming them for an outcome that Merck didn't expect.

Both of those figures may not hold a candle to the $160.8 million budget Merck had for advertising VIOXX - a prescription drug. What was the point of that if not to tamper with the jury in advance?

I really want to be for tort reform. I really do. But this case pushes me in the exact opposite direction.

Why does this case make you oppose tort reform? Do you really think that this judgement is correct, fair, or reasonable even if Merck was 100% responsible for the man's death? It was rediculous on all levels.

Also, while I'm no CEO, I would assume that you spend $160M advertising a new product because you want to advertise its existance - letting people know that there's this new drug on the market that may be applicable to them is one of the easier ways to start moving product, even if it is a perscription drug. And besides, that advertising hits the perscribers too, and they're as human as the rest of us. It's not pre-buying a jury, just like Tide advertising isn't about trying to evade lawsuits for clothes fading. It's about advertising.

I just finished a trial not too far from Brazoria County where Mr. Lanier took his verdict. My result was right under the law and the facts and the total verdict will be just past 100K. Tomorrow, I will be in the Brazoria County District Court where the Vioxx case was tried representing a large insurance company. I am not particularly worried, although there is always risk. The Vioxx verdict was an anomaly, which is why you don’t read about runaway verdicts on a routine basis out of Houston or surrounding areas. If the jury didn’t get the science, it is likely due to a good job of jury selection by the plaintiff lawyer (it is a fact, on personal injury plaintiff cases, the less sophisticated the jury, the better the result) coupled with an inability to adapt the complexities of the science to the courtroom—although if it was just a bad jury, and it may well have been, then the best lawyer in the world wasn’t going to help Merck. But, keep in mind the flip side. In Houston and in most surrounding counties, our juries hate plaintiff cases and plaintiff lawyers, which is good for me because I mostly do defense work. What doesn’t make the press is the mind-numbing regularity with which legitimate plaintiff cases are either lost or have their damages drastically reduced because people don’t like lawyers, lawsuits, etc. Lanier’s verdict will make it even harder for legitimate claims to get a fair hearing.

A couple of other points: from what I’ve read—and whoever said the press cannot report a legal proceeding is exactly right—Lanier will have a hard time hanging on to his verdict. Punitive damages are capped at under 2mm so look for a huge reduction there, but there is no cap on actual damages. But, appellate courts can reduce the 25mm actual damages verdict for excessiveness, which is likely. Also likely is that Lanier’s jury argument and his science will be carefully scrutinized on appeal. Huge verdicts like this get a very thorough review by appellate courts. If the science isn’t there, and competent evidence of causation isn’t there, look for a decision 2-3 years hence rendering judgment that Lanier’s client take nothing and pay court costs. Because of some of Lanier’s jury argument, i.e. apparently equating Merck to Saddam Hussein, a reversal and a new trial for improper jury argument also looms.

Every time a freak verdict comes out, the jury system gets hammered. This is a copout. No system is perfect and until the appellate process has been given a chance to work, no one knows what result the law will be. One thing is for sure. The Texas appellate bench is dominated by elected conservative Republicans. If Lanier’s verdict is affirmed on appeal, it is a certainty that there was evidence to support it. Final note: in 25 years of trying lawsuits, I’ve had my chain jerked more often and much harder by judges, particularly at the federal level, than by juries. I represent a number of insurance companies and large publicly traded companies. When I answer a personal injury or wrongful death lawsuit, I always demand a jury trial—everytime.

Michelle Marie... I'm one of those experts. (You couldn't plug my firm at the same time you plugged the competition?) I can't speak to those firms, but around here we definitely don't leave communicating simply to the jury to the last minute. Our basic M.O. is to first get the economics right and then work (often more than we work on the economics) on explaining it to laymen. That said, there are laymen and there are laymen. I have testified in both jury and bench trials, and I know my colleagues and I all prefer bench trials because, even after we've made things pretty simple, juries do pretty much what they want to do. There are certainly judges out there who aren't exactly prepared to evaluate expert witness testimony either, but I have to say that some juries don't even seem to be trying very much.

>Why does this case make you oppose tort reform?

See here: http://corporatecollections.com/

(Jane, I hope providing a link to my blog is not an inappropriate way to reply. And if it is, I sincerely apologize.)

I'm confused... the pamphlet supplied with the drug did list the possible dangers and side effects. I didn't see anything in the articles that indicated that Marck lied or left out information. The FDA has specific rules for how those pamphlets are organized and what goes in them.

Ernst presumably had a doctor who was familiar with his medical condition prescribe Vioxx. This doctor presumably familiarized himself with the information provided in the pamphlet and hopefully with other information on Vioxx.

So why is Merck even involved in this case? This sounds like it would be a malpractice case against the doctor for improperly prescribing Vioxx not a case against Merck for providing a drug that passed all required government testing and that included all required legal warnings and that is intended to be prescribed by a doctor precisely because it has some risks associated with it.

Earnest

To Jane Woodworth,

Well, go on heralding massive awards because y'all are angry ANGRY that drug companies spend money on advertising. But the thoughts behind that concept reflect some fundamental errors.

1. Prices go down (or up) based on competition. Greater trade (more competition) results in lower prices. Because crayons are made in China, the "64" box now costs a mere fraction of the price when I was a boy. Dell now offers a $300 computer better than my current one, bought two years ago for $1200. And they advertise like mad.
2. Advertising is a tactic in competition.
3. When competiton is present, advertising does not increase prices, but rather leads to a reduction.
4. In contrast, eliminating advertising does not lower prices (that spending does not get used to 'lower the price'). More likely, since that actually limits competition, prices would more likely rise. Eliminating competition raises costs inexorably ("prices" may be subsidized, falsely suggesting something is 'free', but the true costs are ultimately paid, usually by the consumer or citizen).
5. The idea that health care products and services should not be advertised is based on the unspoken assumption that trade and profit are unseemly, unethical, or even evil. That idea can be traced back to Marx and others. It led to the pseudo-economics of socialism, and the deaths of over 100 million in the 20th century.

I don't think it's possible to be more wrong than you are here.

Earnest: "Why is Merck even involved in this case?" Because some people want guaranteed outcomes from medical treatment - and $25 million damages when it goes wrong. (Note: that's at least $8 million to the lawyer.) They couldn't get that much from a doctor, and in all likelihood there was nothing to indicate the guy had a bad heart until it quit, so the doctor did nothing wrong. I doubt that Merck did anything wrong either...

Yes, we could have the legal system guarantee outcomes by giving everyone who died following medical treatment $25 million. Operations such as a heart bypass would cost millions, because the insurance companies would demand that much in premiums - for each case the surgeon took. Everything else would just cost a little more than most people could afford - because there are still a lot of unknowns that affect how treatments work in different people. You'd have a lot less medical malpractice, because you'd have a lot less medical practice. I prefer a system where I pay a reasonable amount for my doctor to do his best, and its nobody's fault when my body doesn't react to the treatment as expected.

Ever seen the signs on the back of trucks, "Stay back 1000 feet - Not responsible for broken windshields"? I wonder why drug companies don't do the same. "By taking this medication, the user assumes responsibility for any negative consequences."

Jane Woodworth,

No offense, but your reliance on their advertising budget seems pretty much...well...strange. To understand why I'm saying this, consider a hypothetical parallel situation. Let's say your next door neighbbor sues you for throwing your garbage on his lawn. You can show that you did no such thing. You can show that the garbage was, in fact, his own and you have pictures of him throwing it on his lawn. Now, imagine you were to still lose the case, and outside reaction was "Well Jane Woodworth spends $100 a month on entertainment. So, yeah its fair she should pay her neighbor."

The likely outcome of this verdict, even if not ultimately upheld, is a chilling effect on research. And fewer drug companies. The recurrent vaccine shortage is, in part, testimony to the effect of ruinous lawsuits.

It's hard to measure the effect of the drugs that you don't discover. And since the government cannot compel companies to make drugs, manufacturers will disappear as soon as the risk/benefit trade-off becomes adverse.

The problem with all such non-market redistribution schemes (socialism, and much of the liability industry) is that they take for granted that the underlying industry will remain untouched. Instead, they are killing the goose that lays the golden egg.

I don't know the merits of Merck's defense. The side effects to Vioxx were known, but I think the reason why it was taken off the market is that the incidence of the side effects was either undereported or unknown. In any event, the incidence was much higher than originally believed.

It is true that we have citizens who expect a perfect world and view the courthouse as the means to address any grievance, real or imagined. We also have bad juries, but they go both ways.

If Merck made a bad product and underreported that fact, they have problems. Why shouldn't they? On the other hand, if Merck stayed within the law and FDA guidelines, if the science supports their view, then a lot of plaintiff lawyers will wind up spending millions of their own dollars building a case that can't be won. Its not a perfect system by any means, but no one, despite a lot of efforts by a lot of smart people, has come up with a better system that comes even half way close to fairly resolving differences between people or companies.

Many of the posters above complain about the jury system, when the complaint is really about the odd verdict that is so bizarre it makes the press. There are twenty civil trials going on right now in Houston, Texas, at least. The defense will win well over half. Making policy on anecdotal evidence is exactly what many of the best minds who post here normally and correctly criticize.

Several things come to mind in reading the comments and main text. First, Merck was wrong as a cardiologist I was well aware of problems with Vioxx shortly after its introduction. The company did not respond to the difficulty in an appropriate manner. Second, as a physician, I dearly hope every individual in the US is faced with litigation. Ultimately someone will do something to stop the madness. Third, the cost of producing a drug, then the cost of recogintion of a problem are prohibitive to a country much less a company. Some realistic system needs to be in place to drastically reduce this process. Fourth, the jury system sucks!! The average person in the US is an idiot at best. The original system was designed to have a few people get together and decide several cases in one day with justice being immediate. Not the circus it is at present. Have you been on a jury? The process is horrible with little care for your needs and concerns. Abuse is rampent and the cost in time and your business is one no body can afford. I avoid it like the plague.

I always assumed most jurors in highly technical cases at least tried to carry out their responsibilities in good faith. I assumed it boiled down to listening to two sets of expert witnesses, and trying to decide which one sounded more credible, which one seemed at a loss under scrutiny, etc. Not an ideal system, obviously, but it's the best a layperson could do under the circumstances. To hear that jurors have openly admitted arriving at a verdict because they were in a snit over the CEO not showing up, or because they wanted to get on Oprah, is pretty depressing.

the people who supported the Iraq war are gullible morons. - Alizéefan

But as one of the comments says about support for Iraq, the inability to process information correctly impacts a lot of areas of our lives. - GT

Translation: "A lot of Americans supported the military removal of Saddam & the Baathists, and these people are all bamboozled idiots. Since half (or more) of all Americans are gullible idiots, we intelligent analytic thinkers [Alizéefan & GT] shouldn't be surprised to see juries that consist of a lot of gullible idiots."

Way to sneak in an off-topic ad hominem argument against the war in Iraq! Anybody who supported it is just plain dumb. Case closed!

This case is hardly an indictment of the jury system.

First, the plaintiffs did put on evidence of causation. From the MSNBC article, "While Araneta couldn’t say definitively that he had a blood clot and heart attack, she insisted they were the likely culprits in triggering an arrhythmia, which she said wouldn’t happen on its own.

Araneta didn’t blame Vioxx, however, noting she knew little about the drug when she performed Ernst’s autopsy. But three plaintiff’s experts in arrhythmia, cardiology and public health did.

Merck’s experts agreed with Araneta’s conclusions in the autopsy, but not her undocumented theory of what triggered the arrhythmia."

Second, it's not exactly nutty that a drug that damages heart muscles, heart valves, causes strokes, and causes heart attacks might also cause arrythmia.

Three, defense lawyers are incredible mediocrities. They lose and lose and lose and blame juries for their problems. Why did this defense counsel from Fulbright and Jaworski spend so much time beating up the widow?

Four, there were very bad facts that Merck knew of the problems with its drugs and continued to market them, delaying a recommended FDA warning explicitly to make more profits.

Five, why do we not trust juries. Two experts in the field have competing opinions. People of reasonable intelligence can listen to their cases and judge them. The fact that two experts disagrees suggests that this is not such a grave miscarriage of justice; after all, their opinions must first pass through the "Daubert/Robinson" gatekeeper. So, at worst, this is within the range of reasonable dissensus and disagreement.

Six, as others have noted, juries zero out plaintiffs all the time and no one gets in a huff. Here a company cynically marketed deadly drugs that killed a bunch of people and likely killed this person and got slammed on summary judgment. This is exactly the kind of case punitives are reserved for.

I find the suggestions that Merck may have put its case on ineffectively plausible--at the minimum, it's a question worth asking. Keep in mind that all Merck had to do to win was persuade 3 of 12 jurors to their side. If an apparently strong argument fails to persuade even that few people, one has to consider whether the argument was made effectively.

On a couple of other issues--Lanier's fees in the case will be nowhere near $8 million, according to today's WSJ. And the speculation about jurors finding against Merck "to get on Oprah" are not based on anything the jurors themselves said, but on remarks by Lanier.

I've also learned as a trial lawyer that while many cases are superficially complex--breach of contract, etc.--often the main issue is who screwed whom, who lied, etc. That is, issues well within a jury's competence. It appears in law school it all comes down to abstruse questions of law, but in reality the legal issues are often pretty simple and the question is just who was the bigger asshole. Products liability is a bit different, but when a company lies, hides facts, continues to market a drug, lies to doctors about its risks, and delays an FDA recall and warning, what result other than this one would really be just. Epstein's market capitalization theory is not very impressive in this context; continued existence of companies and marketing of dangerous drugs is not efficient.

After all, what you say juries can't do, you're asking unsophisticated consumers to do: weigh the risks and benefits of drugs that they have very little competence to evaluate. The civil justice system provides a way to alleviate these informational disparities by imposing duties of disclosure and care on better positioned and better informed parties, in this case the drug companies.

"Well, go on heralding massive awards because y'all are angry ANGRY that drug companies spend money on advertising."

I don't think I'm heralding anything. I do think drug companies should not spend money on advertising of prescription drugs because it promotes something we shouldn't be promoting -
But I also think it is their right to make that choice. What I'm against is asking the government to come in and rescue the same companies, when they dictate the climate but don't like the result.

Re: I do think drug companies should not spend money on advertising of prescription drugs because it promotes something we shouldn't be promoting...

What is it exactly we should not be promoting? And why?

I am curious about the Vioxx case. If I remember correctly studies showed there was an increase in heart problems in Vioxx users as opposed to the control group, but it was a small increase. The more interesting question then would be why are only some users affected and can the drug be made safer since it is a very effective pain reliever. Wouldn't it be better to spend millions on that then transfer wealth to a trial lawyer.

Re: Wouldn't it be better to spend millions on that then transfer wealth to a trial lawyer.

Perhaps; but now we'll never know.

"What is it exactly we should not be promoting? And why?"

Kevin,

VIOXX is a prescription drug, so obviously only a doctor can prescribe it. I think it is putting the cart before the horse if people are running to their doctors suggesting which drugs they should take.

Merck is promoting a drug culture, where the popping of a pill can cure all your ills. That bothers me.

Now I'm not arguing about Merck's right to do that; I think they have that right. As a result of all that advertising, Merck was no stranger to this jury which had probably seen all that relentless advertising for the panacea of the day - in this case VIOXX. That was the message Merck sent.

The problem is VIOXX turned out not to be a panacea, which probably didn't help their case.

Again, I think Merck has every right to spend $160.8 million on advertising if that is how they choose to promote VIOXX. And a jury has the right to reign them in with its verdict.

Re: I think it is putting the cart before the horse if people are running to their doctors suggesting which drugs they should take.
That's rather paternalistic. In contrast, I think people are quite intelligent enough to decide to take a painkiller if they want. Why shouldn't patients be up to date on the latest treatments, and request them? Should we restrict the availaibility of all medical information to MDs only? Sounds like the 1950s.

Re: Merck is promoting a drug culture, where the popping of a pill can cure all your ills. That bothers me.
Yes, much better that they should suffer. The problem is, pills DO cure some ills. I take care of elderly patients who became mobile again with vioxx. Everything else either did not work fro their severe arthritis, or had too many side effects. They would gladly trade a small risk of heart attack for a year without pain. You seem to feel otherwise. Too bad for them, I guess. Damned pill-poppers. Thank god we have juries -and concerned citizens- looking out for them, huh?

Kevin: those same people who are smart enough to know whether to take a pill or not are the same smart people who sit on juries. People don't get stupid when picked for jury service, although plenty of stupid people get picked to serve. Smart people and people in the middle also serve. In most cases, the right result is reached. What is your alternative? No binding dispute resolution system at all? How do people enforce their contractual obligations or obtain recompense when injured through another's negligence?

Jane Woodworth, what is wrong with pill-popping if it really does cure your ills?

Not a thing

"That's rather paternalistic. "

What is paternalistic is enacting tort reform to protect players in the market who choose their own course of action.

mckinneytexas: since you appear to be pretty knowledgable in this topic, what changes, if any, would you propose to improve the jury-tort system in this country?

Re: What is paternalistic is enacting tort reform to protect players in the market who choose their own course of action.

I have to agree that Merck was their own worst enemy here, in certain ways. Much of the damning evidence, interestingly, is consistent with a common corporate legal liability mindset (obfuscate, deny, hide, share nothing, etc.) It made their client look dishonest and dishonorable.
Which suggests their lawyers didn't know what they were doing, I suppose.

But the effort to "protect players in the market who choose their own course of action" can be applied to the plaintiff as well. The victim mentality has taken hold of the citizenry, and adults quickly become children when "injured". Patients want to choose without risk. It can't be done.

This verdict poisons the well. Absent tort reform, Pharma will plug along, mostly maintaining me-tooism, increasing release-from-all-harm paperwork to use their products, and playing it safe with research. Not good for medicine.

"I think people are quite intelligent enough to decide to take a painkiller if they want."

Kevin: If that's the case, then why have a prescription system at all?

Actually, I do think prescription advertising can have some benefits. For example, I would bet there are some people benefitting from anti-depressants who wouldn't have even thought they were depressed except for the television ads that describe their symptoms.

But there needs to be balance. And right now, it seems to be out of balance toward a lot of people taking really expensive anti-inflammatories based on advertising without trying other methods of relief (including not just other cheaper meds, but also lifestyle adjustments like exercise). Merck and the others are accommodating, even encouraging, this, and it's not out of kindness.

At least the health insurance industry has concluded things are out of whack with these "lifestyle drugs" (as in, being able to mow your lawn one day and get out of bed the next is a lifestyle decision), and I know they don't have any conflict of interest. ;)

Bottom line: Big pharma is no more wearing the white hat in this than the trial lawyers or the insurance industry. I don't mind that there are some checks and balances against big pharma. (Disclaimer: Again, that does not mean juries never screw up, being human and all.)

Tort reform is the process of fixing a civil compensatory system that went haywire in the late 70's and throughout the 80's and early 90's. The plaintiffs' bar is in deep denial about their culpability in this regard. Today, insurance costs across the board dwarf what business paid back then. That was bad, but worse was the fact that a corporate defendant could not get a fair trial or a fair appeal. Today the positions are reversed. It was wrong then, and it is wrong now.

Starting in the early 90's, state legislatures began imposing limits on joint and several liability, expert qualifications and raising the proof requirements for punitive damages. In Texas, punitive damages are mostly capped. Texas has also eliminated the empty chair defense. Now the jury assigns the empty chair a percentage of fault and that percentage is deducted from the amount the plaintiff recovers.

Currently, at least in Texas, the playing field has been tilted against plaintiffs and in favor of institutional defendants. I opposed the last round of tort reform for this reason, although I supported almost all prior reforms. Texas, prior to the last round, was about as close to a balanced system as the legislature could get. The only remaining improvement, and one I suggested as an alternative to outright damage caps, was a scale of general damages to objective injury, much like a worker’s compensation system, where a jury verdict in excess of the scale would be presumptively excessive and subject to remittitur absent objective, compelling reasons fairly grounded in the evidence.

The most problematical remaining issue is venue. Unfortunately, there are venues around the country where the jury pool is so benighted that an institutional defendant cannot get a fair trial. Any effort to deal forthrightly with the underlying pathology would be immediately swamped in a sea out PC outrage and thus remains intractable.

The net result though, is like bad laws and bad people, there are just some things that can’t be made perfect. Dispute resolution is one of those things. For the most part, juries are better. Not best, just better.

Denise: re: Kevin: If that's the case, then why have a prescription system at all?
Good point. There are far more meds available OTC than ten years ago. Is that good or bad? I think it's good. Some drugs, such as IV meds, chemo, prednisone, antiarrhythmics, rheumatoid disease modifying agents, and others are unsafe for the general populus. But cholesterol drugs, SSRI antidepressants (low dose), and others are pretty darn safe.

Sure, an MSD/PA/NP should monitor, but I hope OTCs expand over time.

Re:But there needs to be balance.
Precisely. I advocate for the slow, incremental approach.

Jane Woodworth,

I'm really sorry if I seem to be picking on you here, but your argument really does seem to have a problem. What evidence is there that advertising had anything whatsoever to do with Merck's liability on this matter. If Merck had spent the entire $160.8 on dividends, lower drug costs or even a really, really cool Christmas party, they'd still be pretty much liable or not liable for damages. Complaints against drug advertising may be legitimate (I'm inclined to disagree), but I don't see how it "caused" this decision. I mean, are you suggesting that if the plaintiff had lived in an area that wasn't covered by Merck's ad agency, the decision would have somehow been more legitimate?

"Second, it's not exactly nutty that a drug that damages heart muscles, heart valves, causes strokes, and causes heart attacks might also cause arrythmia."

Roach, you're reading a lot into a couple of studies. The only thing the studies showed was that a slight increase in risk of heart attack or stroke was correlated with use of Vioxx for more than 18 months. The only commonality between strokes and heart attacks that I know of is blood clots. In fact, the first Vioxx study used an NSAID (non-steroidal anti-imflammatory drug, such as aspirin, Advil, Aleve, etc.) as the control, and the results were definitely of concern, but the problem was that the scientists couldn't tell if the problem with the Vioxx group was from something that Vioxx did or if the problem was simply that the Vioxx patients weren't getting the slight benefits that the control group got from being on the NSAID's (i.e., less clotting and therefore lower incidence of heart attacks or strokes). In other words, the study itself was set up poorly (in hindsight) and the results were ambiguous. The Vioxx people did poorer than the control group, but might not have done poorer than a control group that wasn't taking any NSAID's.

It wasn't until the later study, which was set up properly, came in that Merck realized it had a problem. As I recall, they withdrew their drug within several months of the results of the later study becoming recognized. That's actually rather quick acting for a bureaucratic organization, as are all large companies.

Studies are underway right now for Celebrex and whatever other similar drugs are out there. i hope that Celebrex never goes off the market because it is the only thing that keeps me mobile. I used to go down the stairs in the morning and up the stairs at night, and never any other time--the pain was simply too great. I had constant knee pain. And because I was on coumadin, I was not supposed to take any NSAID's. One day I asked my orthopedic guy about Celebrex (because I had seen the ads on TV, Ms. Jane Woodworth), and he gave me a funny look and said that he didn't see why I couldn't take it. He double checked his source materials, and prescribed Celebrex for me. Within a few days, the constant pain in my knees was mostly gone. That was two years ago, and I am so thankful for Celebrex.

But, as you can imagine, I was concerned when the first news about Vioxx came out, along with the speculation that Celebrex and others might be implicated too. So I read all the news I could get on the studies and the problems. My conclusion is that if clotting is indeed the mechanism that caused the slight increase in heart attacks and strokes, then I am not at risk because of the coumadin (warfarin) I take daily.

Back to the Vioxx trial. While it is possible that a clot could have triggered a heart attack which could have triggered the arrhythmia, there WAS NO EVIDENCE THAT IT HAD DONE SO. Arrhythmia occurs for many reasons; not just because of a blood clot in the wrong place at the wrong time. And the doctor testified that she found no evidence of a blood clot, but she believed that one could have been there. If that is in truth how the testimony went down, then the case will definitely be reversed on appeal. Possiblities are not good enough; there must be some proof of causation, even if only inferred, as with the beer barrel falling out of the second story window onto passers-by below. No one saw what caused the beer barrel to fall through the window, but it couldn't have happened unless someone had been negligent. Thus, res ipsa loquitur (the thing speaks for itself).

it's worth pointing out here that the vast majority of drug marketing budget is spent on direct marketing to doctors, not tv advertisements to consumers. it's about a 2 order of magnitude ratio of spending, and drug companies are reducing the tv stuff - because it doesn't really work that well. direct marketing to doctors is highly effective and measurable.

mckinneytexas - that's a long response, but to summarize what you're saying, i guess the current system is better than any alternative yet proposed.

Perhaps I'm confused about how drug companies categorize their expenses, but I would have thought that a fair amount of Merck's advertising budget for Vioxx was used to advertise the drug to physicians. I'm making the assumption here that information about new drugs doesn't magically pop into the minds of all the MDs in America just because they're doctors. So I would have thought much of the advertising budget would go into industry conferences, trade shows, visits by sales reps to the thousands of hospitals in the US, samples, pamphlets, mailers, etc.

Am I correct in my thinking here? Or is this kind of expense categorized differently? Or does this information really just magically pop into a doctor's mind once they're an MD?

Whoops! Sorry Jim, looks like you answered my question as I was in the process of writing it.

Rob Leder,

No not anyone. But some of the rationales given (for example that the latest inteligence showed Iraq had WMDs, which is false) shows that many people based their decisiojn on emtion and nat rational analysis. Like Jane tells us the jurors did here.

Jane Woodsworth,

If you devoted a thousand lifetimes to working for the betterment of humanity, you still wouldn't be remotely close to matching Merck's achivements in that area.

So you hate them because they have the nerve to make money while dramatically improving our lives. Whatever. The fact remains that if it the major pharmaceutical companies didn't exit we would all lead shorter, more miserable lives. Whereas if you didn't exist, who would care?

But some of the rationales given (for example that the latest inteligence showed Iraq had WMDs, which is false)

But the statement "the latest intelligence showed that Iraq did not have WMDs" is ALSO false. The actual, true statement is "the intelligence was inconclusive about whether or not Iraq still had WMDs".

Since we knew with absolute certainty that (a) they used to have them and (b) they still wanted them, and since we had no significant evidence that they had gotten rid of them, the intelligent thing to believe was that they still had them.

Now, it may be that that belief was incorrect (although it goes without saying that anyone who thinks "we haven't found many WMDs" means "no WMDs existed" has a defect of reason), but that doesn't mean that only a "gullible idiot" would have believed it. Far from it; only a gullible idiot would have believed that Iraq was free from WMDs. Which is why you pretty much only heard representatives from the gullible-idiot crowd seriously arguing, pre-war, that Iraq had no WMDs.

Actually no Dan, the latest available intelligence at the time of the invasion showed there were no WMDs (with the usual "can't prove a negative" caveat). The Bush administration decided to ignore it, for whatever reasons.

And the one who was seriously arguing that Iraq had no WMDs was Scott Ritter who, unlike practically every other pundit, actually knew what he was talking about.

Actually no Dan, the latest available intelligence at the time of the invasion showed there were no WMDs

Ah, I see that you are ignorant of reality. Further discussion is, therefore, pointless.

All this hand-wringing over getting better juries so corporations can get justice is rather sickening considering how little justice is available in our court system to the poor.

Justice for imaginary persons, who exist only to protect rich, powerful real people, is of more concern here than justice for poor, real people. Of course that's not surprising given the ideology of this site.

No Dan, I can read. The latest available intelligence at the time of the invasion, people on the ground with highly sophisticated instruments, showed there were no WMDs. Did you miss that?

You are a good example of what Jane is pointing out.

You weren't a juror on this case, were you?

All this hand-wringing over getting better juries so corporations can get justice is rather sickening considering how little justice is available in our court system to the poor

Yeah, it isn't like corporations actually have stockholders and employees or anything. Every good leftist knows that you can rob corporations blind without any actual human beings suffering.

Justice for imaginary persons, who exist only to protect rich, powerful real people, is of more concern here than justice for poor, real people. Of course that's not surprising given the ideology of this site.

Hey, why stop there? Just keep going -- right until you have destroyed corporations with this idea that justice only matters for the "little man," and the little man suddenly wakes up one morning and finds that the only cheap pharmaceuticals he can get these days are from snake oil salesmen who are marketing, essentially, unregulated narcotics and booze (and perhaps adulterated with other things you might ordinarily use only to clean the latrine or strip old varnish). That ought to improve the plight of the poor a whole lot, eh?

Ever seen the signs on the back of trucks, "Stay back 1000 feet - Not responsible for broken windshields"? I wonder why drug companies don't do the same. "By taking this medication, the user assumes responsibility for any negative consequences

"Any negative consequences?" Your proposal would allow a corporation a free pass on gross negligence or even malfeasance in making an unsafe drug and putting it on the market.

"What evidence is there that advertising had anything whatsoever to do with Merck's liability on this matter. "

None.

A better question is what evidence is there that Merck's advertising had an impact on the jury. Jurors decide questions of fact. They bring all of their experience to that decision making.

I've never said that Merck's advertising caused this decision. But when going to trial I certainly look at all sorts of factors, including the image of the parties. Jurors don't live in a vaccuum. And they often make a decision that they want to find for a party -(see: OJ, Michael Jackson or any defendant sued by a prisoner). Part of that decision making process involves the party's image whether it is conscious or subconcious. That is simply a fact. You may find that not worthy of consideration, but I do.

"But the effort to "protect players in the market who choose their own course of action" can be applied to the plaintiff as well. The victim mentality has taken hold of the citizenry, and adults quickly become children when "injured". Patients want to choose without risk. It can't be done."

That's a good point, although I think it accrues more to the detriment of Merck advertising its drug as a panacea than to the victim. Not always but from what I can tell in this case.

"This verdict poisons the well. Absent tort reform, Pharma will plug along, mostly maintaining me-tooism, increasing release-from-all-harm paperwork to use their products, and playing it safe with research. Not good for medicine."

Well I agree provided the drug companies do their part for reform. A good start would be pulling the advertising. I'm not crazy about subsidizing VIOXX verdicts when Merck has $160.8 million to advertise that drug alone.

And don't forget, when damages are capped the taxpayer picks up the added costs. Now this poor guy has no added costs, but think of it in terms of a quadriplegic. Why should you and I pay the damages when a liable party can be identified and can afford it? Shouldn't the market take care of itself?

In my jurisdiction, huge verdicts are very rare. In the '80's insurers waged a blitz campaign which informed consumers that every dime paid in verdicts, came out of their pocket. It was very successful, and worked to the detriment of legitimately injured people. The taxpayers were forced to pick up the slack.

Any proposal I've seen for tort reform does not yet strike the appropriate balance. I'm certainly open to one that does.

The jury system is broken. The entire tort system is broken.

Trial lawyers are scum. There's no other way to put it.

Expert witnesses are whores.

Most jurors are unqualified to decide technical issues.

Most judges are unqualified to sit cases involving technical issues.

Jane -- You are ignoring the fact that consumers need to look after their own health. It isn't just a job for their MD, who has neither the time nor the full knowledge to do so. And advertising brings solutions for health problems to people's attention, as the eloquent post by Rex (7:03 pm) illustrates so well. Your ideology is blinding you to the lesson in stories such as Rex's.

I know you are well-intentioned but intentions don't prevent you from being profoundly wrong.

The problem I have with "fixing" the jury system is the same problem I have with "fixing" capitalism and democracy. Yeah, the systems have some serious problems. But any alternative is worse.

The jury system, capitalism, and democracy are all ways in which the citizens are given some control over their lives. While the citizens make bad decisions in voting, rendering verdicts, etc... I DO NOT trust the government or any other person or group to do a better job.

Unless I'm in charge, but then I'd go back to capitalism/deocracy...

Jane Woodworth,

So you are still objecting to advertising budgets even after it was pointed out that the vast majority of those budgets are used to advertise to doctors and make sure they know about the product?

What then is your proposal for educating doctors about new drugs? Do you think the information should just magically pop into their minds because they're MDs? As far as I know, that kind of magical mind-popping technology is still in beta testing.

DRB,

Certainly you can think of better ways to inform doctors than a 60 second spot on Everyone Loves Raymond? No?

"There are twenty civil trials going on right now in Houston, Texas, at least. The defense will win well over half." And every one of those cases the defense wins will cost the defendants hundreds of thousands of dollars. That's several million sucked out of companies that make and sell things people actually need, by trial lawyers bringing a weak case in hopes of either extorting an undeserved settlement (it's often cheaper than defending the case), or hitting the jackpot with a jury pool that's more liberal or stupid than usual.

Not that I'm in agreement with all the tort reforms proposed. The first one ought to be to implement "loser pays", like the British courts - and in the case of lawyers on contingent fees, making the lawyers responsible for these payments.

Jane: Did you miss the post that said that selling to doctors gets 90% of the marketing budget? Note that quite a lot of that marketing budget is the cost of free samples they pass out to doctors. I've had doctors ask if my insurance will cover the prescription, because if it doesn't they have a cabinet full of free samples. Of course, a lot of that budget goes to having "pharmaceutical representatives" [1] go to the doctor's offices in person.

[1] For some reaon, they don't like to be called "drug salesmen". ;-)

I don't have a problem with drug advertising to doctors. I have a problem with drug advertising on TV.

Jult54 - this is a positively silly quote - "Jane -- You are ignoring the fact that consumers need to look after their own health. It isn't just a job for their MD, who has neither the time nor the full knowledge to do so."

How can a consumer who didn't attend medical school look after their own health? If a doctor doesn't have the the full knowledge to look after their health how can John Q. Public? The idea that medical care can be consumerized like buying a car is silly. The consumers of medical don't know enough to act as their own doctors. I go to a doctor because he has specialized knowledge that I cannot spend 10 years acquiring.

Both of those figures may not hold a candle to the $160.8 million budget Merck had for advertising VIOXX - a prescription drug. What was the point of that if not to tamper with the jury in advance?

Merck pulled all of its Vioxx advertising when it chose to discontinue sales of Vioxx. There's not much reason to advertise a product that you don't sell anymore, after all. Since that was before any of these cases were filed, your accusation of jury tampering doesn't really make much sense, does it?

Jane Woodworth,

Sounds good. I take it you are now altering your furious complaint about the evil drug companies and their huge advertising budgets, and your new position is: "I object to a small part of Merck's advertising budget." That works for me if it works for you.

Brian DeSpain -- It isn't silly at all. Educated patients are constantly researching their illnesses and are devoting effort to solving their health problems. That doesn't mean that all pharmaceuticals should be available without a prescription, it means that patients need to play an active role in their health care decision making. In this way, drug advertising to the general public is useful.

I'll say to you what I said to Jane W: your ideology is blinding you to how reality works.

Jane Woodworth: I'd like to see a response to Rex's post from 7:03 on 8/23. How do you feel about that story and how does it affect your position?

I hope nobody thinks the "physician education" portion of the marketing budget is all pamphlets and samples. A large part of that covers give-aways, from stuffed animals (with proprietary designs, and all the costs that entails, like the design itself and maintaining the intellectual property rights) to gourmet lunches for an entire clinic staff to trips to exotic locales, where doctors can attend a couple lectures between golf outings and lounging on beaches.

These things aren't done for their educational value; they are done to buy off the doctors. I don't fault the drug companies for doing it, and apparently it is effective, or they wouldn't keep doing it (and paying pharm reps quite handsomely for the service).

Again, big pharma's hat isn't any whiter than anyone else's.

Rex:

In other words, the study itself was set up poorly (in hindsight) and the results were ambiguous. The Vioxx people did poorer than the control group, but might not have done poorer than a control group that wasn't taking any NSAID's.

It is easy when talking about how a study is set up to forget that we are talking about people, and that there can be ethical constraints on study design. The first study was designed to study bleeding risk with long-term treatment in arthritis sufferers. As desirable as a placebo control is for data analysis, it would not have been ethical to leave a group of patients in pain without effective medication for over a year. While not an ideal study design, it was sufficient to raise concerns about potential cardiovascular risk (although confounded with naproxen) that made it into the package insert. The later study was a study in cancer protection. The patients were not in pain, so there was no ethical problem with giving some of them placebos.

"Jane Woodworth: I'd like to see a response to Rex's post from 7:03 on 8/23. How do you feel about that story and how does it affect your position?"

What is my position?

I'd also like to know what my "ideology"is, since I've been accused of having one that is supposedly impacting my thinking.

The jury in this case found causation notwithstanding Rex's story. If they were in error, the Judge could issue a JNOV. Since he didn't I can only assume that the jury found sufficient facts.

tgibbs,

I did say "in hindsight", but I should have been clearer in what I did say. The real problem is that the study wasn't set up to look for increased incidence in heart attacks or strokes, but that's what the data is being used for. It's already well-documented that a daily aspirin lowers the risk of heart attacks and strokes. Other NSAID's share this benefit. So th original Vioxx study couldn't determine if the higher incidence of heart attacks and strokes came from something that Vioxx actually did OR from the Vioxx takers not taking the NSAID's. So Merck had to do additional studies to find out. Once it became clear to Merck that Vioxx itself somehow caused a slight increase in heart attacks and strokes, they pulled the drug. Now they're being blamed for somehow concealing ambiguous results. Sure looks to me like Merck is being trashed for no real reason (other than to get big bucks for some trial lawyers).

Jane: How does Rex's story about how he discovered Celebrex affect your position on whether direct-to-consumer pharmaceutical is beneficial?

should be: "direct-to-consumer pharmaceutical advertising is beneficial"

markm, you are a bit off on the cost of trying a typical personal injury or contract matter to verdict. The range is 15K to 40K on most matters, running up to 80-120K on significant injury and death cases, provided the defendant doesn't need the security blanket of 400-500/hr attorneys. Really complex, high dollar litigation between companies runs north of 500K and frequently exceeds 1mm. Most lawsuits are car wreck cases and small collection matters, or divorces, and the fees are proportionately small.

It is all well and good to be ticked off over juries and the jury system. Next time, if you are in a position for this to happen, you or your business get shafted in a deal or stiffed on a payment, you can put principle into practice by just overlooking the other person's bad manners.

Mckinney: The contract manufacturing company I work for has sometimes been "stiffed", that is, not paid for shipped product. We generally just hold up the next shipment until we get paid. But there was one large customer that stiffed us for the final shipment before they moved production to their new manufacturing plant. Nothing was done about that, except maybe reporting it to credit agencies. Apparently, hiring lawyers and going to court costs more than the amount in question. (AFAIK, that ex-customer went out of business eventually.)

"Apparently, hiring lawyers and going to court costs more than the amount in question. "

Tell your employer to find a lawyer you will collect on a contingency basis.

That should read:

Tell your employer to find a lawyer who will collect on a contingency basis.

I routinely advise small businesses and individuals to forego litigation because the stress, time committment and cost don't equal the benefit of a recovery. The system lacks an effective, abbreviated method of dispute resolution. However, when a drunk busts a red light and puts someone in a wheel chair or company ships a defective vessel that cracks and the end user gets stuck with a massive clean up bill, a means of redress must exist. No one has suggested a better fact finding system than what has been in place since the beginning of our country. No one says its perfect, but the burden of putting forth a viable alternative rests with those who want to do away with it.

Two words: "loser pays".

"Loser pays" is an attractive notion in the abstract. In practice, it would probably increase the number of lawsuits because it would then become cost effective to file modest claims and collect attorney's fees at the end if the defendant won't pay--and of course, paying now means, "and pay my lawyer too." We have a modified version of it in Texas. Most litigants don't avail themselves of it becuase it is a sharp knife that cuts both ways.

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