A Stitch in Haste

Yesterday's jury award against Merck, the manufacturer of Vioxx, was $253 million. To make the math easy, let's just call that a quarter billion dollars.

At the time Vioxx was pulled, Merck had been estimating sales of slightly under $3 billion per year.

Merck introduced Vioxx in 1999.

So Merck's total Vioxx revenues (not gross margin, mind you, but mere revenues) were, at most, $3 billion times six years, or $18 billion.

So at a quarter billion per plaintiff, that would suggest that only the first 18 x 4 = 72 plaintiffs should receive any recovery.

There are already 4,000 Vioxx-related lawsuits; far more will undoubtedly be filed as soon as personal injury lawyers can revise their "Have you or a loved one..." commercials to have "$253 million" flash across the screen.

Or try another metric: Merck's equity market capitalization after Friday's close was $61.6 billion. So at a quarter billion per plaintiff, that would suggest 61.6 x 4 = 246 plaintiffs should recover damages.

For the rest, too bad so sad.

Forget the fact that the punitive damages award is per se excessive under Texas law.

Forget the fact that the "victim" in the Texas case (the plaintiff was his widow) died from a cardiac condition that has never been linked to Vioxx.

Forget the fact that the plaintiff had only been married to the victim for one year.

A jury has made its decision (by a vote of 10-2; federal civil verdicts, by contrast, must be unanimous).

I sat on the fence regarding professional jurors before this case. Now there can be no doubt. In civil cases where a minimum quantum of intelligence and education are required to evaluate the facts and apply the law, and where enough damages are at stake to preclude future plaintiffs from having their day in court because moron "send a message" juries issue awards that would bankrupt a defendant long before other plaintiffs have time to even draft a complaint, we must either have professional jurors or raise the standards for jury service high enough to keep morons off the jury pool altogether.

Too much is at stake.

Far more detail at Point of Law Forum, including more on the disgraceful incompetence of this particular jury. See also Ideoblog.

I repeat: Professional juries, or higher standards for lay juries, in complex civil litigation with high potential damages. Now.

Too much is at stake.

POST SCRIPT: On a lighter note, I'm reminded of this scene from an episode of "The Practice," with a cameo by Joseph Campanella as the judge, over a cockroach in a restaurant --

FOREPERSON: Jacobs versus WYPR Broadcasting Company, on the grounds of fraud, we find in favour of the plaintiff and order the defendant to pay damages in the amount of two hundred thousand dollars. We further order the defendant to pay punitive damages in the amount of eighteen million dollars.

JACOBS: What? Did she say eighteen million???

CAMP: Order!!! Order!!! Order!!! You gotta be kidding me. You jackasses.

BOBBY: Your Honour, I'm not sure if that's ... appropriate.

CAMP: Eighteen million dollars, what the hell is that? You find for the plaintiff, okay. Personally I disagree, but I was prepared to let it stand. But eighteen million? That's sounds to me like there's bias going on. You seem like very nice people but... I'll let the verdict stand, tempted as I am to vacate it. But I'm cutting the damages to two million. You, sir, should accept it and smile. Now, I'm going to go for a walk. Any luck, I'll get nicked by a bus, sprain a knee, file a claim, get rich and retire to the Bahamas. Adjourned.

If there are any 0L's out there, this is a good opporunity to pre-learn about remittitur.