And the Jury Says…

The decision on VIOXX was announced this afternoon while I was sitting here in Charlotte, preparing for Yet Another Migration Weekend.

From everything I’ve read about the case, there were three questions that had to be answered in the affirmative for the outcome to turn out how it did. Did Merck market a defective product? Was there adequate warning that the product was defective? And was the product considered unreasonably dangerous, such that the benefits outweighed the harm? The jury answered yes to all three.

Nonetheless, I had long considered the plantiff’s case to be a weak one. The individual at the heart of the case, Bob Ernst, died of arrhythmia, not a heart attack. That the coroner who performed the autopsy now states that it is likely he died of a heart attack, not arrhythmia, some three years later seems flimsy to me. She then engages in true speculation, stating

Ernst probably had a heart attack because a clot blocked the blood flow in an artery that was already clogged with plaque. She also said CPR conducted on Ernst probably dislodged the clot.

Merck loses a case based entirely on the speculation of the individual who performed the autopsy some three years later gave while on the stand. There’s nothing, at least reported by the media, that indicates there’s any concrete proof behind the claim.

Given the result, it looks like anyone who took the pill should hop on the lawsuit bandwagon as a quick way to make a million or two. All you need is someone who can testify that Vioxx caused your stubbed toe, and you’re good to go. Why let some form of proof get in the way?

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