The Problem With Juries

Megan McArdle (Hat tip: Balko) is greatly displeased by the recent verdict against Merck for $259 million for its drug Vioxx. She says that the juries of laymen cannot be trusted to understand complex scientific issues, and that from her perspective, it was pretty clear that Vioxx could not have been the cause of death:

According to the Wall Street Journal, jurors were swayed by things that simply shouldn't have been a factor--an irrational belief that the CEO should attend the case (Merck is sued hundreds of times a year; should the CEO stop running the company so the jurors can feel special?), and even more disturbingly, a desire to get on Oprah. You only get on Oprah if you find for the plaintiff.

Every successful big lawsuit against a pharmaceutical company reduces the capital available to the industry, and the willingness of the industry to spend capital on developing new drugs, rather than novel ways to package things already on the market that they haven't been sued for. As Richard Epstein says, it's no good saying you only want to target the bad companies; investors have no way of telling, in advance, which companies jurors will decide are "bad". This case was widely viewed as a slam dunk for Merck, given that the plaintiff's deceased husband had neither the use profile, nor the cause of death, associated with Vioxx's problems. In the case of companies that are misbehaving, that is a cost we have to bear. But there seems to have been little evidence that Merck was misbehaving, and no scientific evidence that the drug caused the death the plaintiff was suing over.

This points up a larger problem, which is that even under the Daubert standard of scientific evidence, lay jurors are disastrously ill-equipped to cope with complex technical arguments. An acquaintance who is a securities litigator told me shortly before 9/11 that they try their damndest to keep cases out of court, because the issues are so complex that even the lawyers have a hard time getting a handle on them, and "if you explain it to the jury, it takes six weeks, and they hate you more with every minute--and at the end, they still don't understand it."

I don't know anything about this case, but my only experience as a juror comes to mind. It was a wrongful death lawsuit against a subsidiary of UPS. A teenage girl had driven 16 hours straight from New York to northern Florida when she suddenly realized that she had slipped onto I-10 in the wrong direction. So she slammed on her brakes and attempted a U-turn on the Interstate. A truck driver behind her clipped her back corner, causing her to lose control of the car and careen into a logging truck on the other side of the freeway.

Sarah Isom died instantly. The asking price, if I remember correctly, was for about $25 million.

I was surprised that extensive jury deliberations were even necessary. The girl had done something profoundly stupid and gotten herself killed. I'm sorry that she died, but that doesn't make it the responsibility of UPS or its subsidiaries.

The rest of the jury disagreed with me. The most advocated arguments were that (1) the defendants were rich and could afford it and (2) the Isom family had suffered so much they needed some money to help them out -- and therefore the defendants should pay. Among the jurors advancing these ridiculous arguments was a state prosecutor! She, if anyone, should have known better.

So I don't know if the science confused the jurors in this Merck case or not. But I would not be surprised to learn if plaintiffs played upon the juror's emotions and illogic in order to win.

Additional commentary on this case from Sean Lynch.