Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘product liability’

Ernst v. Merck Vioxx trial to begin in Texas

Merck withdrew the painkiller Vioxx from the market when a study showed that it increased the risk of heart attack and stroke after eighteen months of use. 59-year-old Robert Ernst died suddenly of arrhythmia after taking Vioxx for seven months. No studies connect Vioxx to arrhythmia, but press coverage of the Brazoria County case, the first Vioxx products liability case to go to trial, has focused on the widow’s love for her husband rather than the lack of scientific controversy or asking why this case is going to trial at all. (Most press accounts repeat Carole Ernst’s claim that her husband was perfectly healthy; only the AP and USA Today mention in passing that Ernst’s autopsy showed atherosclerosis: two arteries partially blocked with plaque.)

Attorney Mark Lanier’s jaw-dropping theory, noted without rebuttal by the AP: “Mr. Lanier’s team says sudden death doesn’t leave enough time for the heart muscle to show whether Vioxx caused any damage.” The lack of evidence of damage is just proof of how insidious the drug is! As we noted on July 1, Lanier (Dec. 23, 2003) doesn’t seem interested in proving causation beyond innuendo. If you look through the press accounts, note especially the AP’s dramatically staged photo of Lanier in the New York Times: the case must be scientific because of all the pathology textbooks in the foreground of the shot! (Alex Berenson, “First Vioxx Suit: Entryway Into a Legal Labyrinth?”, NY Times, Jul. 11; Kristen Hays, “Jury selection to begin in Vioxx case”, AP, Jul. 10; Dana Calvo, “Vioxx Trial Could Set Precedent for Merck”, LA Times, Jul. 11; Richard Stewart, “Motion challenges plaintiff’s experts”, Houston Chronicle, Jul. 11; Kevin McCoy, “Merck to face first Vioxx trial before Texas jury next month”, USA Today, Jun. 30; Kristen Hays, “Lawyers gear up for first Vioxx suit against Merck”, AP/St. Louis Post-Dispatch, Jun. 28).

Read On…

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“Merck on trial”

Writes Larry Ribstein (Jun. 24): “It’s bad enough the corporate fraud trials are about resentment, but now guilt by resentment seems to be spreading to products liability cases.” In a Vioxx trial expected to begin next month in South Texas, according to a WSJ report, folksy plaintiff’s lawyer Mark Lanier is planning to lay on the exec-bashing with a trowel while going light on such matters as the explication of statistical significance in side-effect data. See Barbara Martinez, Lawyer Outlines Attack on Merck For Vioxx Trial”, W$J, Jun. 24. More: Point of Law, Feb. 8. Further coverage: Jul. 11, Jul. 15, Jul. 29, Aug. 19 ($253 million jury verdict).

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“GDR athletes sue over steroid damage”

“A big group of former East German athletes is to sue a pharmaceuticals giant over the damage they suffered under the country’s doping program of the 1970s and 80s.” The chief executive of the Jenapharm drug manufacturing group, Isabelle Roth, said the steroids in question were lawful and that the enterprise had no choice but to furnish them under the then-Communist regime: “As a part of a group of pharmaceutical companies, Jenapharm was obliged to collaborate in the State Plan 1425”. (BBC, Mar. 13). More: Tom Palmer comments. (& update Dec. 4).

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More updates

The St. Petersburg Times has a feature on $15-million Dillard’s escalator settlement for Kerriana Johnson and her family (Feb. 2); just in time for Valentine’s Day, it’s a love letter to the plaintiffs’ attorney team of Justin Johnson and Michael Keane. It’s a little much, especially when the reporter marvels that Johnson and Keane were clever enough to videotape depositions, something that’s been all but standard practice for big cases for at least five years. Another all-too-typical strategy decision, credulously praised by the reporter who covered the trial: interrogate Dillard’s employees who had nothing to do with the accident, and then claim their ignorance about the facts shows the callousness of the corporation. (Jamie Thompson, “Legal ‘Odd Couple’ formidable in court”, Feb. 7; Jamie Thompson, “Witnesses recount store horrors”, St. Pete Times, Jan. 19). Interesting aspect we hadn’t previously commented on: the girl’s mother, Lori Medvitz, had been awarded only $20,000 by jurors; the settlement gives her (as opposed to her daughter) $3.8 million. None of the press coverage dares to suggest that there may have been a bit of a conflict of interest there. (Jamie Thompson, “Escalator suit ends in $15-million deal” St. Pete Times, Feb. 2).

The Los Angeles Times has more detail about the fraud case that led to a mistaken $1.8 billion verdict (Feb. 8); the defendant’s story is quite fishy. (Bob Pool, “Essay Flap’s Plot Takes Strange Turn”, Feb. 10).

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Trial lawyers and the flu vaccine shortage

Kevin Drum argues that the reason that liability fears are not enough to keep vaccine makers out of the market is because vaccine makers can buy liability insurance and then raise their uncapped prices to compensate them for this additional expense. Thus, he concludes, restrictive FDA regulations are behind the shortage.

But why can vaccine makers raise their prices to cover liability insurance costs, but not raise their prices to cover their regulatory costs? After all, regulatory costs are much more predictable than liability costs.

The Weekly Standard correctly pins the culprit: strict product liability. American vaccine manufacturers have fallen by the wayside because trial lawyers have succeeded in driving them out of business.

In 1974, a British researcher published a paper claiming that the vaccine for pertussis (whooping cough) had caused seizures in 36 children, leading to 22 cases of epilepsy or mental retardation. Subsequent studies proved the claim to be false, but in the meantime Japan canceled inoculations, resulting in 113 preventable whooping cough deaths. In the United States, 800 pertussis vaccine lawsuits asking $21 million in damages were filed over the next decade. The cost of a vaccination went from 21 cents to $11.

Every American drug company dropped pertussis vaccine except Lederle Laboratories. In 1980, Lederle lost a liability suit for the paralysis of a three-month-old infant–even though there was almost no evidence implicating the vaccine. Lederle’s damages were $1.1 million, more than half its gross revenues from sale of the vaccine for that entire year.

(William Tucker, “La Grippe of the Trial Lawyers”, Oct. 25; this site, Oct. 14, Dec. 23). If only the Discovery Institute could stick to its sound work on tort reform and give up its embarrassing support for creationism quackery, I wouldn’t be so reluctant to cite to an article by one of its fellows.

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“Asbestos X-rays rechecked”

“A new look at X-rays used to help win billions of dollars for asbestos victims detected abnormalities in only 4.5 percent of the X-rays — not in 96 percent, as medical experts intitially testified. The study by Johns Hopkins University radiologists found that medical experts who testified on behalf of plaintiffs in asbestos suits almost always found something suspicious on their X-rays, whether it was asbestos dust or a likely malignant tumor.” The study appeared in this week’s Academic Radiology, a scientific journal. (Bill Scanlan, Rocky Mountain News (Denver), Aug. 5; Reed Abelson, “Study Raises Questions of Witnesses”, New York Times, Aug. 4). See, among many other entries on this site, Jan. 21. More: the journal Nature weighs in (Emma Marris, “Asbestos study suggests bias in experts”, Aug. 5). Yet more: GeekPress, MichMedMal.

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Stella Liebeck and McDonald’s coffee revisited II

More discussion of the McDonald’s coffee case, the blogosphere discussion of it, and why it’s relevant today on our sister blog, Point of Law (Aug. 4).

One additional point merits discussion: “PG” of Blog de Novo (Aug. 3) makes the oft-heard argument that it was alright for Stella Liebeck to sue McDonald’s for millions because she first tried to settle for her medical expenses. I recently had an experience that shows why this thinking is fallacious.

Read On…

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NTSB says no defect, jury says $44 million

“Parker Hannifin Corp. of Cleveland, the world’s largest maker of hydraulic equipment, was told by a Los Angeles jury to pay $43.6 million to the families of three people killed in a 1997 SilkAir crash in Indonesia.

“The Los Angeles Superior Court jury yesterday determined that defects in a rudder control system caused the Boeing 737 to plunge from 35,000 feet, killing all 104 people aboard. The National Transportation Safety Board concluded that there were no mechanical defects and the pilot intentionally caused the crash.” Boeing and SilkAir had already settled out, and the jury refused to apportion any fault to them. “‘We are incredulous,’ said Lorrie Paul Crum, a spokeswoman for Cleveland-based Parker Hannifin, who said the company will appeal. ‘This is the best case for tort reform I’ve seen yet.'” (“Parker Hannifin will appeal jury award”, Akron Beacon Journal, Jul. 8). “The trial established Parker Hannifin’s liability and relatives of about 30 other people will now go to trial in the same Los Angeles court to determine how much Parker Hannifin owes them in damages, [said Walter Lack of Engstrom, Lipscomb & Lack, attorney for the families]”. Parker Hannifin says it plans to appeal. (“SilkAir crash: US firm told to pay US$44m”, Business Times of Singapore, Jul. 9).

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