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Jewish World Review August 25, 2005 / 20 Av, 5765 Certain juries do disservice By Dan Abrams http://www.JewishWorldReview.com | In extremely complex and emotional cases, certain juries can sometimes do the rest of us a disservice. The latest example: a $253-million verdict out of Texas against pharmaceutical giant Merck. It was the first case to go to trial over the drug Vioxx. It sets a dangerous precedent. Not because Merck has clean hands and not because the plaintiff isn't sympathetic, but it seems the evidence just doesn't warrant this kind of payout and the jurors' own comments prove the point. Robert Ernst died of a heart arrhythmia at the age of 59 while taking Vioxx. It seems clear Merck could have done more to address potential heart dangers associated with the drug. That's the easy part. The question jurors seemed to ignore, more importantly, is whether or not Vioxx caused Mr. Ernst's death. According to Monday's Wall Street Journal, "Jurors who voted against Merck said much of the science sailed over their heads." One juror even compared Merck's defense to the teacher in Charlie Brown who inaudibly says, "WAWAWA." It seems the possibility that the drug was responsible was enough, but the medical community is still debating whether Vioxx's benefits outweigh the potential risks. While the doctors research and investigate, trial lawyers aren't waiting for the answer. They're taking the case to juries like the one in Angleton, Texas that voted 10-2 against Merck. But it sure looks like at least some jurors are more concerned with the way witnesses answered questions rather than what they actually said. One juror even said it was "an admission of guilt that certain senior Merck officials testified via videotape rather than in person." Look, it sounds like Merck needs to find some new lawyers, but I don't want lawyering to determine how much the rest of us pay for drugs or to affect how vigorously these companies search to find new ones. It seems clear Merck should have to pay. They ignored potential risks, should have studied the drug more thoroughly and should not be permitted to simply rely on the small print on a label. Maybe a fine is appropriate. And anyone who can demonstrate the drug caused harm should be compensated. But if this jury couldn't say that the drug was a cause in Mr. Ernst's death and the FDA can't even definitively say it should be taken off the market, then how does that translate into a $253-million verdict for one family? Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JWR contributor Dan Abrams anchors “The Abrams Report,” Monday through Friday from 6-7 p.m. ET on MSNBC TV. He also covers legal stories for “NBC Nightly News with Tom Brokaw,” “Today” and “Dateline NBC.” To visit his website, click here. Comment by clicking here. ARCHIVES © 2005, MSNBC

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