Back to your regularly-scheduled thread....
There's a very interesting article in the WSJ today about the second Vioxx case, which is being tried in New Jersey. Here's a clip from that article.
On the other hand, this suit may be even tougher for Merck, because it centers on a scientifically proven link between Vioxx and heart attacks and strokes. The Texas case, in contrast, involved arrhythmia, or an irregular heart beat, a symptom that lacks an established link with Vioxx.
This was a point I made very, very early on in this thread - one that falls on deaf ears of those who want to stick it to this bad pharmaceutical company because they do things that they don't like. Damn the facts; we have a dead person and a defendant who needs to be taught a lesson.
I found it fascinating that when I presented myself as a "subject matter expert" on the topic (I spent 5 years creating heart attacks in the lab, and have approximately 30 articles in the peer-reviewed literature on the subject) that somehow it never mattered because a proper jury arrived at a decision against Merck. Or it was 'because I said so.' At least now what has been known to scientists all along - and ignored or not understood by trial lawyers - is making it into the lay literature.
This IMO is all the more reason for allowing a proper FDA approval process for a drug or medical device to be used as sufficient defense against litigation except for extraordinary circumstances. And when the subject matter is too difficult for a lay jury to understand, a defendant (such as the OBs in the infamous CP trials) should be entitled to trial by a jury of peers. I don't take anyone in this discussion to be stupid, and yet we have a failure to communicate and/or to understand. Bias, yes. Agenda, yes. Stupidity, no. I do however find it disappointing that a pharmacist - someone who SHOULD know better - would be sticking to a point of view without any scientific basis. But...it is what it is.
Finally in today's article...
For Merck, New Jersey could be an easier playing field than Texas. John Brenner, a partner at the law firm McCarter & English who does defense work for pharmaceutical companies -- but not for Merck -- says that in New Jersey the compensatory-damages part of a liability trial can be heard separately from the punitive-damages part. The effect is to limit the evidence that a jury sees in determining liability. In addition, a New Jersey statute makes it difficult to find a drug company liable if the drug's label has been approved by the FDA, as Vioxx's was.
And that IMO is the way it should be.
A final note... My brother, an attorney, was completely in agreement with me about the Texas decision. As he said, even if the plantiff had died of a cause statistically linked to Vioxx consumption, the case didn't have "the burden of proof" needed for a disease process with multiple risk factors. But as he said, "You just never know how a jury trial will end up."
And that's what the appeals process is all about. Problem is, it's a tremendous financial burden on the defendant and the system. It should not cost a king's ransom to defend one's innocence, and it should not cost me (or the poor and elderly) more money for prescription drugs because these kinds of cases are being tried. The tragedy of it all is that it scares the pharmaceutical industry away from doing research for drugs which treat rare but serious diseases. If the litigation risks diminish or eliminate the profit margins, it just isn't worth it. The under-represented are the ultimate losers here.