(above:  National Geographic's Odds of Dying chart from inkycircus)

I'm a student of the social psychology of conflict.  Of in-groups and out-groups.  Of choosing sides and aligning interests.  Of polarization and cognitive biases. 

But I just never get it when a newspaper reporter -- even someone living as rarefied a journalist's life as New York Times reporter Joe Nocera -- sheds crocodile tears for BigPharma.

Call me crazy.  Call me neutral.  But the recently settled Vioxx cases never struck me as low-merit, extortionate rip-offs nor as slam dunk victories for injured consumers or their survivors.

Why?  For all the reasons Joe notes -- it's extremely difficult to prove that one assault on a person's physical well-being (the use of a potentially life-endangering drug) is a more likely explanation for stroke, heart attack or death than the thousands of other reasons we all eventually die -- obesity, smoking, genetic pre-disposition, exposure to toxic chemicals in the workplace, stress and the like.     

John Doe's Alleged Vioxx-Related Heart Attack

In negotiating the settlement of litigation, I find it best when people actually engaged in the dispute are in the room because it tends to focus the parties on the intricacies, texture, dimensionality and simple messiness of real life.

With that in mind, I'll use a hypothetical to put a little flesh and blood into the debate.  More precisely, I'm going to use a hypothetical John Doe who had a heart attack about ten months after he started taking Vioxx.    

What Merck Did and Failed to Do

As Nocera acknowledges in his article Forget Fair, It's Litigation as Usual,  Merck did not behave with the high level of caution the consuming public would expect of a drug manufacturer creating and marketing a product we ingest to help make us better.  I mean, no one was taking Vioxx as a recreational drug, right?  Here's what Nocera says about Merck's marketing of Vioxx.

[Merck] caught a serious case of blockbuster fever in the 1990s. In its effort to crank out drugs with $1 billion or more in annual sales — the definition of a blockbuster drug — it over-reached. . . . 

Merck spent hundreds of millions of dollars marketing Vioxx, largely through direct-to-consumer advertising, portraying it as some kind of miracle pain reliever. So instead of having a few hundred thousand users in the short time it was on the market, it had 20 million. Its annual sales grew to $2.5 billion a year.

Even before the drug was approved by the Food and Drug Administration, there were rumblings in the scientific community that Vioxx might increase the risk of heart attacks or strokes. It’s not quite right to say that Merck completely ignored those potential problems — but the company certainly tried to avert its eyes.

. . . At Merck . . . “there was a kind of studied ignorance” of the possibility that Vioxx could increase the chances of a heart attack — even after one study, called Vigor, suggested that the drug could quadruple the heart attack risk. Only in 2004, when another study confirmed the increased risk, did Merck finally react — by taking the drug off the market.

(emphasis mine).

So Merck was making billions of dollars on a drug that probably should not have been marketed to the general public.  Merck ignored the medical research -- some of which showed the drug could quadruple the risk of heart attack -- until yet another study confirmed the increased risk.

Nevertheless, Nocera worries about a judicial system railroading Merck into creating a fund for people who are able to demonstrate that the drug likely caused stroke, heart attack or death.   

John Doe's Bereaved Family Seeks to Recover for Their Devastating Loss  

As Nocera notes, you can never really be certain what caused your cancer or heart attack.  No one will ever know for sure why your brother had a stroke at 35 when everyone else in your family lived into their nineties. We all have medical histories that make us vulnerable to one or more life-threatening conditions that will eventually kill us off.  As the National Geographic recently noted in the chart reproduced above, our odds of death from any and all causes are 100%.

We'd die if we lived in a bubble.

But John Doe died too young, leaving his hypothetical family to fend for themselves.  He appeared to be in perfect health.  Sure, he'd had a genetic pre-disposition to heart attack.  But his family history gave no reason to believe he'd be stricken with sudden cardiac failure until he reached his 70's.  He was only 42 years old when he died.

The Vioxx thing is in the news shortly after John Doe's death. As Nocera's article notes, Merck was finally forced to take the drug off of the market -- which alerted its customers to the possible ill-effects the drug had on their health.  

Listen, Merck didn't voluntarily forego $2.5 billion in yearly sales out of the goodness of its corporate heart.  It took the drug off the market because it foresaw billions of dollar of potential legal liability to a statistically predictable number of poeple -- among its millions of consumers -- who would allege that their strokes or heart attacks were caused by their consumption of Vioxx.  

In the absence of Plaintiffs' lawyers willing to represent people on a contingency, would Merck have been concerned about liability?  Would it have left the drug on the market longer?    

The Way in Which "Claiming" Behavior Arises after Inexplicable Personal Calamity

But let's return to John Doe.  He's been deceased for, say, a year, when a friend of his widow, pointing to an article in the New York Times about the dangers of Vioxx says to her "wasn't John taking Vioxx before he died?

"Sure," she says, "but John hated trial lawyers, particularly those who represent injured victims.  I think he would have agreed with Times reporter Nocera who wrote" -- 

It is impossible to know what causes someone to have a heart attack, just as it is impossible to know why someone develops cancer. In the Vioxx litigation, the plaintiffs’ lawyers were arguing, in effect, that the way to punish the company’s bad behavior was to make it hand their clients large sums of money, even though they couldn’t prove that the clients’ heart attack had been induced by Vioxx. Meanwhile, the company argued that it was just as likely, if not more likely, that some other risk factor was involved, like smoking or obesity — even though it had put a product on the market that increased heart attack risk.

"John wasn't obese and he quit smoking in college," she says, wiping away a tear.  "His physician said that the Vioxx could have contributed to his heart attack, but we'd have to hire a lawyer and an expert physician to determine whether it was Merck's negligence or random fate that caused John's death.  I couldn't afford that."

Litigation as Regulatory System

Nocera complains that the free-market, law-based method of resolving such potential liabilities, should John Doe's widow pursue it, isn't a good way to regulate drug safety.

He might be right.  But I doubt that the widowed Mrs. Doe would agree.  After all, the regulatory system -- the FDA -- approved this drug for marketing to the general public.  The regulatory mechanism didn't work. 

And aren't we a nation that abhors federal regulation with nearly American Revolutionary zeal?  Don't we believe that a market regulated by profit and loss and (hopefully) "enlightened self interest" is the economy that thrives.  Don't we now smugly point to the demise of the Union of Soviet Socialist Republics (the country formerly known as Prince) to vindicate the superiority of a free market versus a regulated economy?

In the Vioxx litigation and settlement, you have the free market working at its most robust.  A free market that includes a voice -- a small voice, but a voice nevertheless -- for the little people  who make the American market the healthiest place in the world for Big Business to thrive (see CNN's report on 2006 Fortune 500 profits in its article A Profit Gusher of Epic Proportions here). 

All the Vioxx settlement does is to give Mrs. Doe and her children the opportunity to prove that it was not genes or mold in the men's room at John's workplace or an early exposure to toxic chemicals in the oil town in which he grew up -- but his consumption of Vioxx -- that caused his untimely death.  

If that is "Litigation as Usual" in a world which distributes its economic resources in a radically unequal way,  I'd say that's pretty much as close to justice as we're ever going to get.

For other responses to the Nocera article, see the Angel Reyes blog post on the topic here and the other links provided in the Personal Injury Law Round-Up #37 by Austin attorney Brooks Schuelke.