A Stitch in Haste

Here's a fact pattern that every law school student comes across:

You are involved in an automobile accident that is 100% the other driver's fault -- call him Defendant #1. You suffer a broken arm that will result in $10,000 worth of compensatory damages.

You are put into an ambulance. On the way to the hospital the ambulance is itself in an accident that is also 100% the other driver's fault -- call him Defendant #2. You suffer a broken leg that will result in $50,000 worth of compensatory damages.

Question: If for whatever reason you choose to sue only Defendant #1, how much can you sue him for -- $10,000 or $60,000? Likewise, if you choose to sue only Defendant #2, can you sue him for $60,000 or only $50,000?

Answer: The general rule is that you can sue Defendant #1 for the entire $60,000, since he proximately caused both the first and the second accident. The negligence of the second driver does not break the chain of causality. But of course Defendant #2 cannot be held liable for the first accident -- he was not there and in no way caused it. So, in general, a defendant can only be held responsible for damages occurring after the negligent act, but not before.

Keep all that in mind when you read about the most recent Vioxx verdict, Garza v. Merck:

If you've been relying entirely on AP or national press coverage of the Garza case, you perhaps do not realize what a giant miscarriage of justice it is.

Not just that, by the Garza's own theory of the case, Leonel Garza had been taking Vioxx for under a month.

Not just that Leonel Garza was a 71-year-old smoker who was overweight, had high cholesterol, and previous [sic] had both a heart attack and a quadruple bypass, yet was awarded $7 million in "compensatory" damages.

But the fact of the matter is that there is no documentary evidence that Garza was even taking Vioxx. Garza never had a prescription for Vioxx.

Read the whole thing.

Let's assume that Garza had, contrary to all evidence, actually taken a few Vioxx pills. They did not "cause" Garza's heart attack any more than Defendant #2 "caused" your broken arm in the hypothetical. Mr. Garza's age, weight, smoking and poor health caused his heart attack. If anything, the Vioxx -- again, assuming Garza ever took any -- may have slightly worsened his condition or slightly increased the already extant risk of Garza's heart attack. It is therefore totally inappropriate to hold Merck liable -- even assuming it should be held liable at all -- for the totality of Garza's heart attack or his death, just as Defendant #2 cannot logically be held responsible for the totality of your injuries in the chain of accidents.

Assuming Garza even took Vioxx, and assuming that Vioxx really contributed minimally to Garza's self-inflicted coronary, then the most that could have be reasonably awarded was some token amount, perhaps $1,000 per pill (Garza took no more than 15 pills), representing the incremental injury caused by the drug. This case, almost certainly worth zero, was clearly not worth $32 million.

This was a very scary verdict. It went against the weight of the evidence and every established rule of causation and liability in tort law. It was nothing less than a violation of due process. Let's hope the appellate courts make that clear.

More thoughts from Coyote Blog.