Comments on: “Flood” of Avandia litigation?

By: Brian P

Brian P — Fri, 25 May 2007 12:39:43 +0000

I don’t think these numbers must, of necessity, foreclose liability under “preponderance of the evidence” standard in any single case because that standard requires a showing by preponderance, of causation with regard to the particular plaintiff, rather than a group at large (although the study of the group at large is certainly an impediment to a Daubert challenge). However, I cannot imagine what evidence in any particular case would overcome the lack of preponderance in the general sense in my own mind if I were a juror. And of course posting that last sentence on the web should ensure I will not become a juror in any of the eventual cases.

By: Drew Drytellar

Drew Drytellar — Fri, 25 May 2007 11:49:02 +0000

Thanks for the helpful answer Ted! The more I learn about the mechanics of civil law the stranger it seems.

By: Ted

Ted — Thu, 24 May 2007 20:15:48 +0000

Drew: You raise a point that I and several others have often raised, which is that failure to demonstrate a relative risk greater than 2.0 is grounds for summary dismissal. Plaintiffs often get around this by pointing to a single study where there was a higher relative risk (ignoring the ones where the risk was lower or nonexistent), and having an expert make a conclusory statement that a drug caused this particular adverse event. I’ve discussed this in more detail in the context of Vioxx litigation, where the relative risk for low-dose Vioxx is also below 2.0.

By: Deoxy

Deoxy — Thu, 24 May 2007 16:47:09 +0000

DD,

Lawyers need EVIDENCE? New one on me…

Evidence makes cases a bit easier, but all a lawyer needs to win is the emotions of the jury.

By: Drew Drytellar

Drew Drytellar — Thu, 24 May 2007 15:10:41 +0000

I should add, my question above is not rhetorical. Does anyone out there well versed in the law who knows how you would show a preponderance of evidence here? I would like to know.

By: William Nuesslein

William Nuesslein — Thu, 24 May 2007 13:44:27 +0000

The extra “risk” in Vioxx and now Avandia are barely significant statistically.

The rational inference is that these drugs do not have a medically significant risk. Such a risk only would be indicated by elevated risk factors of at least 3.

Life expectancy has been rising rapidly. Big Parma is very inept at killing us. Impoverishing us is another matter.

By: Walter E. Wallis

Walter E. Wallis — Thu, 24 May 2007 12:59:26 +0000

Hot diggity, Jackpot. I knew there had to be a winner somewhere in my pillbox.

By: jb

jb — Thu, 24 May 2007 12:15:25 +0000

So the standard for all medicines is now to have no potentially fatal side effects, no matter how rare or how positive the primary effects?

Brilliant.

By: Drew Drytellar

Drew Drytellar — Thu, 24 May 2007 11:24:16 +0000

If the verdict is decided by the “preponderance of evidence”, then a 70% chance the heart attack was not caused by Avandia would seem to guarantee a defense victory. In practice, though, that is definitely not the case. I understand how juries may rely on sympathy or factors other than the statistics to make their decision, but I don’t understand how civil law applies. What legal grounds are used to justify a case where even the plaintiffs favored evidence does not show a preponderance of evidence?
Note: There are some assumptions here–maybe you can identify heart attacks caused by Avandia or the 70% figure is not right. Even if they’re not true, the broader question remains.