Articles Posted in Products Liability

This represents my best guess of what the tort reformers would have wrote if Merck had won the Texas Vioxx trial:

“Well, the greedy plaintiff’s lawyers did their best but they could not fool the good people of Texas. Mark Lanier, who is supposed to be a star of the plaintiff’s bar, was rumored by the liberal media to be winning the case, which only shows how out-of-touch they are with mainstream America. Real people can see right through a huckster like Lanier, who apparently left his alleged trial advocacy skills in his plane.

Sooner or later the socialists who have (temporarily) captured the American media will learn that jurors will not fall for the sympathy plays used by Lanier and his ilk. No – jurors listen to and evaluate the facts. They listen to scientific experts and disregard those who create new “science” for the purposes of litigation. The American people are not dummies, notwithstanding the pabulum that they have been served by a media that assumes they are ignorant.

The next Vioxx trial in September 12 in New Jersey.

I watched some of the news coverage on the Vioxx verdict and have some more thoughts….

First, Merck lost $5B in market cap in a few hours. I am not sure the losses are over. It is clear that the jury did not believe Merck. The jurors I saw interviewed seemed intelligent. They were just outraged that Merck knew about a problem and tell not warn about it. Any investor who saw juror interviews would be more concerned about the value of the company than he or she was before seeing the interviews.

Second, we all know now that thanks to the lobbyists and the Texas legislature the punitive verdict will be cut down below $2,000,000. My guess is that the compensatory verdict will be cut, too – it certainly would be cut in Tennessee.

I believe that the next trial is in New Jersey next month (plaintiff had an MI; he survived) followed by a trial in federal court in New Orleans in November.

The wonderful thing about this verdict for the rest of the cases is that before trial the plaintiff was not expected to win. Merck thought they had a strong causation case and, as I pointed out in the past, historically the plaintiff loses the first few cases of this type.

Obviously, it would be a mistake to assume that Merck will lay down in these cases given this one defeat. The venue is considered pro-plaintiff, although insiders have indicated that they did not thing that the jury itself was not particularly pro-plaintiff as jury selection ended. In addition, the case was tried by a fantastic lawyer – that obviously makes a difference. Hopefully, Mark Lanier will be invited to try the next few cases.

The Plaintiff won $229,000,000 in punitive damages in the Texas Vioxx trial. More later.

This is a very preliminary report. The amount may be compensatory and punitive damages. In fact, I just heard that the total award is $253,400,000, subject to caps. Punitives are capped based on the computation of economic damages.

Addendum: Look here for a photo of a lawyer who just won an important case. There are a couple of other great photos that follow in the slide show.

The Vioxx jury has asked to see the testimony of the pathologist. Read more here.

The jury in the Texas Vioxx case is hearing closing arguments today. I will let you know when I hear about the verdict.

UPDATE: Here is an article giving a brief summary of the arguments.

The NYT has done a review of the testimony to date in the Texas Vioxx trial. The Times concludes that the plaintiff has the upper hand, which one would hope would be true since the defense has not put on its case yet but is still good news for the plaintiff.

The article reviews some of the testimony. For example, consider this excerpt:

Mr. Lanier later asked Dr. Nies [a retired Merck scientist involved in the Vioxx project] about a contract proposal in which Merck had offered to pay researchers at Harvard $200,000 to lead a study that would have directly examined Vioxx’s heart risks. Dr. Nies said the study would have been unethical, which is why the study was ultimately scrapped.

The Plaintiff closed her case yesterday in the Texas Vioxx trial, and Merck called its first witness, a researcher.

One of Merck’s arguments is that the decedent was a smoker. His widow testified that he had not smoked in 15 years.

I assume that Merck has at least one defense better than that one.

Do you have a potential case where you need to know something about a chemical substance? Look first to MSDS – Material Safety Data Sheets. These documents may be found here.

MSDS have lots of information, including …

Section 1 – Product and Company Identification
Section 2 – Compositon/Information on Ingredients
Section 3 – Hazards Identification Including Emergency Overview
Section 4 – First Aid Measures
Section 5 – Fire Fighting Measures
Section 6 – Accidental Release Measures
Section 7 – Handling and Storage
Section 8 – Exposure Controls & Personal Protection
Section 9 – Physical & Chemical Properties
Section 10 – Stability & Reactivity Data
Section 11 – Toxicological Information
Section 12 – Ecological Information
Section 13 – Disposal Considerations
Section 14 – MSDS Transport Information
Section 15 – Regulatory Information
Section 16 – Other Information