[Mb-civic] No Defense For This Insanity - Sebastian Mallaby - Washington Post Op-Ed

[William Swiggard]

No Defense For This Insanity
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By Sebastian Mallaby
The Washington Post
Monday, May 1, 2006; A19

Team Bush could use some fresh domestic policy. Its talk of tax reform 
has fizzled. Its defeat on Social Security has destroyed its hopes of 
fixing entitlements. Its feckless energy non-policy has come back to 
haunt it. Its tax cuts look ever more untenable as Iraq costs escalate. 
Its proposed expansion of health savings accounts is incompetently 
muddled. Its bungling of Hurricane Katrina's aftermath is legendary. Its 
trampling of civil liberties has been rolled back by the Supreme Court.

Desperate moments call for desperate remedies. President Bush should 
seize upon the monstrous Vioxx litigation to champion a cause that he 
believes in: the cause of tort reform.

Vioxx, you say? Sticking up for a painkiller that boosts the risk of 
heart attack is an unconventional approach to winning votes. But the 
Vioxx litigation -- 11,500 lawsuits and counting -- is so crazy and 
repulsive that it makes even drug companies look virtuous. It glorifies 
prejudice above science as much as Bush's stance on global warming; it 
wastes money as grotesquely as Bush's tolerance of pork. Everybody knows 
that trial lawyers are Democrats. By grabbing hold of Vioxx, Bush could 
do his side some good.

How do the Vioxx lawsuits glorify prejudice? Well, the first case 
brought against Merck, the painkiller's manufacturer, concerned a man 
who, according to his autopsy, had died of an irregular heartbeat -- a 
condition that, unlike heart attacks, is not actually associated with 
Vioxx. Moreover, the placebo-controlled trial that linked Vioxx to heart 
attacks and led to Merck's voluntary withdrawal of the drug from the 
market found no adverse effects until after 18 months; the alleged 
victim had taken the medication for only eight months. These scientific 
niceties didn't matter to the jury. "Whenever Merck was up there, it was 
like wah, wah, wah," one juror told the Wall Street Journal. "We didn't 
know what the heck they were talking about."

Meanwhile, the jurors had no difficulty understanding Mark Lanier, the 
trial attorney and decidedly unscientific Baptist preacher who brought 
the lawsuit against Merck. Lanier tickled their vulnerabilities and 
vanities, playing on local prejudices against faceless corporations from 
the East Coast. Knowing that one juror loved Oprah Winfrey, he 
insinuated that finding Merck liable might qualify her to appear on 
television. "I can't promise Oprah," he said artfully, but "there are 
going to be a lot of people who'll want to know how you had the courage 
to do it."

Merck's experience since that first case hasn't always been better. The 
company has won three verdicts, but last month it endured a second and 
third loss. One involved a 75-year-old diabetic who suffered from 
clogged arteries before he began taking Vioxx. The other involved a 
71-year-old smoker and veteran of quadruple bypass surgery who had 
suffered a heart attack more than a decade before Vioxx even existed. 
Far from taking Merck's medicine for the 18 months identified as 
dangerous, the smoker had taken it for no more than one month, making 
the claimed association with his heart attack all the more implausible.

Ordinary mortals would be embarrassed to demand millions of dollars on 
this basis. But the way the trial bar tells it, defiance of science is a 
triumph rather than a scandal. "This is the first case in the country 
where short-term usage has been found by a jury to be causatory of heart 
attacks," exulted the plaintiff's attorney, skirting the question of how 
12 laymen can be said to "find" medical causation. "We hope this will go 
a long way in dispelling this 18-month science fiction myth," the 
mythmaker went on.

Open societies flourish because they are driven by intelligence and 
information; the U.S. tort system creates an enclave of idiotic whimsy 
in the heart of the most open society in the world. But the Vioxx 
litigation does not merely celebrate dumb prejudice. It's 
extraordinarily expensive. For this year alone, Merck has set aside a 
legal war chest of $685 million. The Vioxx lawsuits could eventually 
cost it between $10 billion and $50 billion.

Did those numbers sink in properly? The midpoint of those estimates -- 
$30 billion -- is six times more than the federal government spends 
annually on cancer research. Or, to put it another way, $30 billion is 
about five times Merck's annual earnings, meaning that one of the 
world's top pharmaceutical research establishments is fighting for 
survival. At a time when Americans fret over relative decline in science 
and business, it's insane to sink a flagship scientific company in order 
to line the pockets of unscrupulous lawyers.

The first politician who says this will be called an enemy of injured 
victims, but he or she will also deserve to be called bold and right. 
Perhaps the nation could create a pool of scientific jurors -- retired 
doctors and such -- to hear medical cases; perhaps it could penalize 
lawyers who bring expensive cases that get overturned by higher courts. 
Whatever the solution, there's undeniably a problem. The status quo is nuts.

http://www.washingtonpost.com/wp-dyn/content/article/2006/04/30/AR2006043000867.html
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