Friday, September 16, 2005

Washington Post editorial

Ok, I'll be the first to make a somewhat substantial post. The Washington Post had an editorial that I agreed with almost 100 percent this morning. I assure you this does not happen often.

The editorial addressed the challenges facing Merck on Vioxx jury verdicts and the jury's inability to comprehend the medical testimony. I've argued for sometime that testimony was out-pacing juries and I think it's interesting that a mainstream publication would recognize the potential problems the jury system presents in a complicated case. The Post cites a juror who said they wanted to "send a message to Merck" this is eerily similar to a juror in the Martha Stewart trial who wanted to "send a message." This is, what I find to be, a scary trend toward jurors who are deciding cases not on the basis of the facts, but on some extrajudicial sense of purpose. In this case, it appears the jury rendered a verdict in conflict with the facts (as I understand them). This is a development that undermines a prime purpose of the jury system--protecting defendants from government imposed punishments without sufficient evidence of guilt.

The editorial also suggest a payment compensation fund set up by the gov't to provide payouts to those hurt by drugs, similar to the system used for vaccines. I'm not sure that I agree that is the right way to go. I think perhaps, allow drug companies to be liable for compensatory damages makes sense. On punitive damages, I do agree with The Post. I don't see why a drug company who produces medicines under the rules established by the gov't should be punished for their actions. The Merck case may not be applicable here, because of evidence that Merck may have concealed damaging medical studies. Whatever the system decided upon, it should not delay potentially life-saving treatments anymore than absolutely necessary. It seems this is a case of damned if you do, damned if you don't. Drug companies are decried for being too slow to market with potential treatments, then hit with multi-million dollar verdicts when they bring products to market that have side-effects (including those with warning labels) that show up after several years of use.

UPDATE: David Bernstein seems to agree.