Quote: "Nope, looks like "mental anguish" and "loss of companionship" make up the bulk of non-economic damages. Punative damages were capped"

Sorry, wrong. Economic damages were something like $400K. Mental anquish/loss of companionship was about $23 million or so (from memory of another article). The remainder, something like $230 million, was punitive. The things that gets me are 1) what exactly are they punishing Merck for, since it did all the normal thing in creating, testing, and monitoring the drug, and 2) why does every jury "punish" the negligent party separately...how many $230 million dollar punishments does Merck have to pay (if the jury were to get it's way, which it won't because punitive damages are capped in Texas based on the other amounts in the verdict).

I whole-heartily agree that 12 hayseeds are NOT the right choice to decide the merit of testimony by several medical specialists. I don't think a judge is either. You need a panel of experts.

Hmmm, this thread must have been in the tri forum....I didn't see it and started a similar thread in the lavender room but nobody wanted to discuss :-(

I have enough trouble with people filling out pre-operative forms and signing their HIPPA statements. Could you imagine if for every drug we buy, the pharmacist required us to read and sign a discloser statement?

"All that being said I am a law clerk for an insurance defense firm and in my third year of law school. I think we should have some tort reform. However, when a company has made millions of dollars in profit by looking the other way and putting people at risk, that company should be punished. "

Sounds like you would be welcomed with open arms in the Plaintiff's bar. Come over to the side of the good guys.

"It has been shown over and over in studies that the outcome of medical malpractice cases has very little correlation to the facts of the case but is correlated to the outcome of the patient regardless of the liability involved"

Do you have a particular study you can refer me to?

Would your system also compensate plaintiff's attorneys for the frivalous pleadings filed by defense firms? How about adding special compensation for the Plaintiffs resulting from defense firms refusing to settle meritorious claims and further clogging the court calenders?

In my albeit limited experience, defendants have limited pleadings to save their own costs where possible. And if a plaintiff's firm has done their homework, they can settle virtually anything. Major defendants in asbestos litigation who haven't followed the advice to settle cases they would prefer to let languish have been getting their clocks cleaned.

Unfortunately, the bigger the damages the longer the delay. Insurance companies prefer to drag cases out for as long as possible to allow them to continue to invest the money. It's cheaper to pay a defense firm than pay a settlement on the larger cases. The more defendants in a case the longer the delay. I'm talking about slam dunk cases: 56 year old man checks into the hospital for surgery to repair a hernia and he leaves without his legs due to surgical error; 22 year old pregnant female is rendered paralyzed at T-6 due to anesthesiologist's repeated failure (by her own admission at deposition and to the dismay of defense counsel) to properly administor an epidural; 48 year old man dies after being given 27,000 units of Heparin instead of 270 units. There are more but you get the idea. Each case was a slam dunk and each case was litigated for at least 1.5 years before any settlement negotiations took place. In each case there were multiple defendants filing bogus Motions for Summary Judgment all of which were denied.

I'm surprised none of the attorneys here has responded with a simple explanation of tort theory to put this into some context.

While the punitive damages may be excessive at ~$230 million, punitive damages serve a disincentive purpose. In this case, the jury sent a message, right or wrong, that Merck should be punished for withholding negative test results in an effort to diminish the patient's right to know frequency and magnitude of potential side effects. If this seems unreasonable to you, then consider the alternative - a world in which companies have no incentive to tell consumers all of the potential side effects and their magnitude, and in which they in fact have incentive to conceal this information because the game theory indicates they will suffer no penalty for doing so, and in fact will benefit from it. The onus for discovering this information then falls on the consumer, who will have to suffer in masse to find information which has already been located, but is being actively hidden. Is this what you consider just?

Likewise, more to the core of theory of torts, when products have personal damage issues associated with them, be they pharmaceuticals, cars, airlines, poisoned food, etc., who should be liable? The answer cannot be nobody, because clearly, in every case, there is certainly additional care that can be taken that would reduce the probability of that negative event from occurring. There's always a little more care that can be taken to prevent a plane crash, bad meat, explosive fuel tanks, and dangerous drugs. The question is, on whose shoulders does this burden fall? If corporations and other producers of products will not be held liable, then the burden falls on consumers. But are consumers really able to assess the dangers associated with car design, aircraft maintenance records and training, food handling, or drug testing, especially in light of the fact that these companies will likely be withholding any information about this they may have? It seems unlikely and a rather onerous burden to suggest they should.

What appears more efficient is that corporations should be held liable for these damages, so that they end up incorporating the potential and magnitude for such liability into their costs of doing business, notwithstanding the sometimes arbitrary nature of such costs. But I think to suggest they not be held liable at all places a ridiculous level of burden on consumers, especially in the growing absence of regulatory oversight. Other economic theory indicates that the ultimate productive outcome would remain the same, but this makes broad assumptions about transaction costs (zero) and the availability of information (completely), which are obviously impracticable in light of the conditions mentioned above.

I think the larger problem is that there is a sense that the awards are arbitrarily large, which I think is probably valid. More than anything, it prevents companies from being able to predict with any certainty the costs of their actions and doing business. I assume this is where insurance comes in, but at the same time, insurance providers probably have the same issues.

As for juries, I assume Merck had its own input into the content of that jury. I'm not an attorney, but I have had the experience of sitting through a jury selection procedure for a high profile case (State of New York vs. Consolidated Edison, Federal criminal case), and I would suggest that both sides deliberately screen out candidates who have high levels of education and awareness of current events. I guess both sides think they can more easily influence hayseeds. That said, I think the idea of using some sort of arbitration panel is better in theory than practice. The arbitration panel used by the NASD for securities cases is notoriously heavily weighted towards brokerages in terms of composition and decisions, so I think the idea of arbitration panels comes fraught with significant political/fairness considerations.

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

Don't think we have any disagreement here...my issue isn't that punitive damages exist, it's the amounts. I don't believe they really serve the greater good anymore. Many high risk physician specialties have all but disappeared. Health insurance costs are out of control, and, as you say, the cost of punitive damages is factored into the cost of drugs, which makes them less available. If drug companies are witholding information about dangerous side affects, would seem to me that should be a criminal offense in addition to civil. That way companies don't have to make an economic decision as to the cost/benift of concealing information.

Remember these 12 idiots are 12 of your peers. How do you know them to be idiots? This is the jury system at work.

I agree with he "medical costs rising because of the verdicts like that" comment.

USA has the highest medical costs in the world bar none and if you are not insured,good luck.

I am not defending drug companies which are still trying the promote drugs like Viagra or Statins to healthy people who does not need them but this whole system has to change because eventually we are the ones who are paying...

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I see obsessed people.

What about the THOUSANDS of people whom the doctors save their lives....oh wait...that does not matter. Again I say....black list these people and their lawyers from any medical care in the US...they dont like the system...dont let them benifit from it.

Someone posted about chewing on tree bark for a cure....why not just hit these people with sticks as primary care.



Oh, and I could name case after case after case of idiot lawers who want to sue doctors for sneezing (yes sneezing) in the ER suite (away from the patient)...to not being god...some people go to Vegas and hope to win millions...other go to the Doctor.

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What if the Hokey Pokey is what it is all about?

"Oh, and I could name case after case after case of idiot lawers who want to sue doctors for sneezing (yes sneezing) in the ER suite (away from the patient)...to not being god...some people go to Vegas and hope to win millions...other go to the Doctor."

Name the cases. It doesn't happen in the real world. You can't win a med mal case without a compelling expert witness to provide testimony about the deviation from the standard of care. In some states such as Maryland, you can't even file your med mal case in the Circuit Court until you make an initial presentation, with an expert witness, before a health claims arbitration panel. Maryland also has a cap on non-economic damages (pain and suffering).

Fair enough.

My problem here is that you have both this push for deregulation and at the same time a push to reduce consumer's rights to sue. If both succeed, then what recourse do consumers have for corporate liability? And what incentive do companies have to provide reasonable safety for their products, when they know there will be little chance of being brought to justice?

As for medical liability, I think you have to be careful in analyzing where the costs in the healthcare system and insurance system are coming from. I could be wrong, but my understanding is that studies show that the vast majority of healthcare insurance payouts are being caused by a very small segment of bad doctors, which then push up premiums for everybody else. In addition, much of the healthcare system's expenses are now administrative, in HMOs which allocate significant resources to figuring out how not to pay claims. I think lawsuits are certainly a problem, but not the magnitude that people would like to think, for the simple reason that they get a lot of press, but not a lot of real examination as to the true cost they represent. They are likely just the easiest target to aim at and demonize for people. I mean, everybody hates lawyers until they need one, and then they're your best friends. Funny how that works.

As for criminalizing the concealment of safety information, that would be nice, but it's never going to happen. The country has decided to head more towards deregulation and putting the onus for discovering safety information on consumers. Of course, this system relies on the civil litigation system as well to function, or else you essentially have no recourse whatsoever for damages. And what it might do is discourage companies from doing safety testing at all.

This might be helpful:

http://www.americanvoice2004.org/health/malpractice.html

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"They who would give up an essential liberty for temporary security, deserve neither liberty or security" - Benjamin Franklin
"Don't you see the rest of the country looks upon New York like we're left-wing, communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here." - Alvy Singer, "Annie Hall"

re: Ibuprofen addition...be careful....see this story...

I had knee tendonitis my junior year of college. I was taking 2400mg a day to deal with the pain. Eventually, the tendonitis went away but I just couldn't stop pounding the ibuprofen. Yeah, it started as a pain management tool, but it eventually devolved into a crutch that overwhelmed all aspects of my life. I had to take it just to get through any stressful situation--a test, a date, a court hearing...you name it.

I remember one night--the night before a big race--I ran out of the stuff at 2 AM. The drug stores and big-chain super markets were all closed. I drove all around the county until I found a 7-11 that sold them in little 4-packs. I was already to the point where anything less than 3,000 mg at once wouldn't do it for me, so I bought up every pack they had in the store. It was pretty embarrassing...yet, somehow, I was still able to deny to myself that I had a problem. Pretty soon, I was going through an entire 100-tablet bottle every *day*.

Everything came crashing down the day of my team's conference meet. We had stayed at a hotel the night before. One of my teammates knew about my problem and took my 1,000 tablet bottle out of my bag in the middle of the night. (I hated him for it at the time, but in retrospect he was trying to help me.) He gave the bottle to our coach. When I couldn't find the bottle in the morning, I flipped out. Finally, when we got to the race course, I overheard the coach telling another runner that he had been given my bottle of ibuprofen. I ran over to our coach, grabbed him by his jacket, and threw him to the ground. I screamed: "Just give me the god damn bottle! Give me the bottle or I'll bash your head into the ground!!" My teammates immediately swarmed and pulled me off the coach. They held me down on the ground while I cried and screamed.

Needless to say, I did not run the race that day; we ended up finishing third. Had I competed (I was our #2 man) we would've finished second or maybe even first.

I ended up getting counseling, and I've been clean now for four years. And I mean CLEAN. I haven't touched anything for those four years--not even tylenol or aspirin.