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No Defense For This Insanity

By Sebastian Mallaby
Monday, May 1, 2006

Team Bush could use some fresh domestic policy. Its talk of tax reform has fizzled. Its defeat on Social Security has destroyed its hopes of fixing entitlements. Its feckless energy non-policy has come back to haunt it. Its tax cuts look ever more untenable as Iraq costs escalate. Its proposed expansion of health savings accounts is incompetently muddled. Its bungling of Hurricane Katrina's aftermath is legendary. Its trampling of civil liberties has been rolled back by the Supreme Court.

Desperate moments call for desperate remedies. President Bush should seize upon the monstrous Vioxx litigation to champion a cause that he believes in: the cause of tort reform.

Vioxx, you say? Sticking up for a painkiller that boosts the risk of heart attack is an unconventional approach to winning votes. But the Vioxx litigation -- 11,500 lawsuits and counting -- is so crazy and repulsive that it makes even drug companies look virtuous. It glorifies prejudice above science as much as Bush's stance on global warming; it wastes money as grotesquely as Bush's tolerance of pork. Everybody knows that trial lawyers are Democrats. By grabbing hold of Vioxx, Bush could do his side some good.

How do the Vioxx lawsuits glorify prejudice? Well, the first case brought against Merck, the painkiller's manufacturer, concerned a man who, according to his autopsy, had died of an irregular heartbeat -- a condition that, unlike heart attacks, is not actually associated with Vioxx. Moreover, the placebo-controlled trial that linked Vioxx to heart attacks and led to Merck's voluntary withdrawal of the drug from the market found no adverse effects until after 18 months; the alleged victim had taken the medication for only eight months. These scientific niceties didn't matter to the jury. "Whenever Merck was up there, it was like wah, wah, wah," one juror told the Wall Street Journal. "We didn't know what the heck they were talking about."

Meanwhile, the jurors had no difficulty understanding Mark Lanier, the trial attorney and decidedly unscientific Baptist preacher who brought the lawsuit against Merck. Lanier tickled their vulnerabilities and vanities, playing on local prejudices against faceless corporations from the East Coast. Knowing that one juror loved Oprah Winfrey, he insinuated that finding Merck liable might qualify her to appear on television. "I can't promise Oprah," he said artfully, but "there are going to be a lot of people who'll want to know how you had the courage to do it."

Merck's experience since that first case hasn't always been better. The company has won three verdicts, but last month it endured a second and third loss. One involved a 75-year-old diabetic who suffered from clogged arteries before he began taking Vioxx. The other involved a 71-year-old smoker and veteran of quadruple bypass surgery who had suffered a heart attack more than a decade before Vioxx even existed. Far from taking Merck's medicine for the 18 months identified as dangerous, the smoker had taken it for no more than one month, making the claimed association with his heart attack all the more implausible.

Ordinary mortals would be embarrassed to demand millions of dollars on this basis. But the way the trial bar tells it, defiance of science is a triumph rather than a scandal. "This is the first case in the country where short-term usage has been found by a jury to be causatory of heart attacks," exulted the plaintiff's attorney, skirting the question of how 12 laymen can be said to "find" medical causation. "We hope this will go a long way in dispelling this 18-month science fiction myth," the mythmaker went on.

Open societies flourish because they are driven by intelligence and information; the U.S. tort system creates an enclave of idiotic whimsy in the heart of the most open society in the world. But the Vioxx litigation does not merely celebrate dumb prejudice. It's extraordinarily expensive. For this year alone, Merck has set aside a legal war chest of $685 million. The Vioxx lawsuits could eventually cost it between $10 billion and $50 billion.

Did those numbers sink in properly? The midpoint of those estimates -- $30 billion -- is six times more than the federal government spends annually on cancer research. Or, to put it another way, $30 billion is about five times Merck's annual earnings, meaning that one of the world's top pharmaceutical research establishments is fighting for survival. At a time when Americans fret over relative decline in science and business, it's insane to sink a flagship scientific company in order to line the pockets of unscrupulous lawyers.

The first politician who says this will be called an enemy of injured victims, but he or she will also deserve to be called bold and right. Perhaps the nation could create a pool of scientific jurors -- retired doctors and such -- to hear medical cases; perhaps it could penalize lawyers who bring expensive cases that get overturned by higher courts. Whatever the solution, there's undeniably a problem. The status quo is nuts.

smallaby@washpost.com

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