It is thoroughly amazing that nearly all the people who dominate our public discourse regarding the law, science, or politics, or economics have absolutely no idea what they're talking about. Reading the "pundits" in our "liberal" media, about nearly any given issue, is like reading a Road And Track Magazine edited by a bunch of Amish guys:
In extremely complex and emotional cases, certain juries can sometimes do the rest of us a disservice. The latest example: a $253-million verdict out of Texas against pharmaceutical giant Merck. It was the first case to go to trial over the drug Vioxx. It sets a dangerous precedent. Not because Merck has clean hands and not because the plaintiff isn’t sympathetic, but it seems the evidence just doesn’t warrant this kind of payout and the jurors’ own comments prove the point...
It seems clear Merck should have to pay. They ignored potential risks, should have studied the drug more thoroughly and should not be permitted to simply rely on the small print on a label. Maybe a fine is appropriate. And anyone who can demonstrate the drug caused harm should be compensated. But if this jury couldn’t say that the drug was a cause in Mr. Ernst’s death and the FDA can’t even definitively say it should be taken off the market, then how does that translate into a $253-million verdict for one family?
And this guy is apparently a "legal" expert for MSNBC.
He's all over the place. What exactly is he saying? He's saying Merck was clearly negligent and put a product on the market that was unsafe for it's intended use. He's saying the Plaintiff proved this. But he's saying the Plaintiff didn't prove that Merck's negligence caused the death of the Plaintiff.
And so far, he's fine. Though I can't for the life of me figure out what that garbage about a fine is all about. Juries don't hand down fines. Regulatory agencies hand down fines. Maybe he's just being lazy and not taking the time to argue that this issue should have been decided by a regulatory agency rather than a jury.
Though, that's pretty stupid, because the fact that Merck sidestepped a regulatory agency, the FDA, to put an unsafe product on the market is the reason that this case was before a jury. The fine idea is goofy. The FDA failed to prevent Vioxx from reaching the market. And the FDA hasn't done a damn thing since people started dropping dead from it.
If it weren't for private litigants bringing suits, none of Merck's negligent behavior would have ever come to light.
Is this joker really saying that its the duty of private litigants to spend their own time and money to prove regulatory violations so that the regulatory agencies which have either ignored or completely failed to notice those violations can impose fines? It's up to private citizens to investigate federal regulatory violations?
And then not receive any money for it? Not even a reward to cover their legal costs. Gee, that's a system that would work well.
But the goofiest thing he says is: "how does that translate into a $253-million verdict for one family?" Again, the causation point is valid. If you can't prove causation, you don't get any money. But this last line is the hallmark of the at least twenty five year corporately sponsored, Republican assault on product liability cases.
We move away from causation--we forget causation altogether--and we appeal to your basest instinct: envy. You don't have $253 million. Why does this one family get $253 million? Does this one family deserve $253 million? Doesn't that make you mad?
Which is just stupid. And it's dishonest. And, from a "liberal" new organization owned by giant multi-national corporations like GE and Microsoft, it's like taking out a billboard saying, "What You Are About To Read Is Corporately Approved Propaganda. Please Proceed."
Do you know why that family got $253 million? Was it to compensate them for their loss?
The jury awarded more than $250 million in total damages -- $24 million to Carol Ernst for mental anguish and loss of companionship, and $229 million in punitive damages. Ernst's Houston-based lawyer, Mark Lanier, said the punitive-damages figure was based on "the money Merck made and saved by putting off their product label changes."
The jury awarded $24 million to compensate this one family for their loss--and that is something you can debate whether they deserved or not. Then, the jury handed down a $229 million dollar award in punitive damages.
What does this mean?
Well, it means that the jury, just like MSNBC's legal "expert", determined that Merck clearly should have to pay. It means that the jury, just like MSNBC's legal "expert", determined that Merck "ignored potential risks, should have studied the drug more thoroughly and should not be permitted to simply rely on the small print on a label."
The jury, just like MSNBC's legal "expert", determined that Merck negligently put an unsafe product on the market. And should pay for it.
Did the jury think that one family deserved $253 million dollars? No!
The jury awarded $229 million in punitive damages. Which are, by definition, to punish Merck. Punitive damages are the civil litigation equivalent of a regulatory fine, which this clown already says Merck deserves.
Okay. But why was it so much? Why does Merck have to pay so darn much money to one family?
Well, it "was based on 'the money Merck made and saved by putting off their product label changes.'"
In other words, the jury basically took away the money Merck made by avoiding making their product safer.
And that sends a message to corporations: "You aren't going to save money by putting people's lives at risk." It tells corporations that spending a relatively small amount of money to save people's lives is no more expensive that killing a consumer and then standing before a jury. With the legal costs. And the bad publicity.
It tells corporations that it's cheaper to spend the money and put incredibly safe products on the market than it is to kill a few consumers now and then and face their families in court.
Is that the job of courts? Absolutely! That's the whole point of punitive damages. To perform a regulatory function that regulatory agencies either can't or will not do. And if punitive damages aren't obscenely large, with regard to giant corporations, like McDonald's or like Merck, then they won't work.
If punitive damages aren't huge, then, sorry, bidnesses will just continue to write off your death or the death of your loved ones as the cost of doing bidness.
Let's not forget:
The FDA approved Vioxx for sale in May 1999. By 2004, 20 million Americans had taken the painkiller and its annual sales exceeded $2.5 billion.
Merck had gross sales of $2.5 billion dollars on Vioxx alone. I have no idea what the profit margin is for Vioxx. But if it's even a lousy, thin 20%, which is less than retail, then Merck was making $500 million net profit off this drug a year.
How are you going to convince a company that's making $500 million a year in profit on a single product to take reasonable steps so that their product doesn't every now and then kill one its customers?
You're going to fine them? You're what, going to pass down some $10,000 regulatory fine? And that will discourage these corporations from unsafe bidness practices that are netting them $500 million a year???
Five hundred million dollars a year? These corporations would pay $10,000 a month, plus the occassional successful wrongful death suit, to kill you and yours and not think twice about it. They'd write it off as the cost of doing bidness.
You don't believe me? We have nearly two hundred years of history of corporations killing Americans for profit or rendering the land on which Americans live absolutely poisonous.
It's punitive damages, it's "excessive" jury awards to one family that stop Love Canals, and thalidomide, and small exploding automobiles, and cribs that strangle babies.
Punitive damages are supposed to be excessive, expensive, shocking. And it is not for one family. It's for all our families.