By now everyone knows that a Texas jury found Merck & Co. liable in the death of 59-year-old Robert Ernst, who took the pain reliever Vioxx, and awarded his widow $253.4 million.
Given that outcome and that Merck is facing thousands more Vioxx lawsuits, two serious problems need to be addressed: Judges are supposed to be "gatekeepers" who ensure that juries hear valid scientific evidence from qualified experts. And jurors are expected to understand that evidence and decide cases based upon it. But neither responsibility was met in this case.
Let's begin with the jury. After the trial, a juror named John Ostrom told The Wall Street Journal, "Whenever Merck was up there [testifying], it was like wah, wah, wah" (mimicking a sound from "Peanuts" television cartoons). "We didn't know what the heck they were talking about."
What the heck they were talking about was medical science relating to the question of whether Vioxx caused Ernst's death. Touching on that point, a string of "expert" plaintiff witnesses had plenty to say.
Dr. Maria Araneta, for instance, testified that Mr. Ernst died of a heart attack caused by a blood clot. As the defense noted, Dr. Araneta's own autopsy report said he died of an arrhythmia; it said nothing about a heart attack or a clot (wah, wah, wah).
Dr. David Egilman gave highly dubious testimony about the relation of arrhythmias to heart attacks. Although Dr. Egilman often testifies for plaintiffs in lawsuits against asbestos companies, he isn't a cardiologist. The defense challenged his expertise, noting that a Colorado judge had prohibited Dr. Egilman from testifying because he was "not objective, reliable, or credible." But the Vioxx judge wouldn't allow that fact to be told to the jury.
To appreciate how much judges need to understand about science, take a look at the "Reference Manual on Scientific Evidence." Published by the Federal Judicial Center, this is 637 pages of heavy-duty essays on such topics as toxicology, epidemiology, DNA evidence, multiple regression, statistics and engineering practice and methods.
Since this manual was first published in 1994, more than 100,000 copies have been distributed. As Supreme Court Justice Stephen Breyer notes in the introduction, "Most judges lack the scientific training that might facilitate the evaluation of scientific claims or the evaluation of expert witnesses who make such claims."
Evidence supports this analysis. The Harvard Medical Practice Study of New York courts, completed in 2002, found that as many as 80 percent of verdicts against medical malpractice defendants are unjustified by scientific evidence. Studies in two other states came to similar conclusions.
There's a more sensible way to handle medical litigation: medical courts. Judges on these courts would have special training in science and would handle nothing but medical lawsuits. Qualified, neutral experts in a variety of specialties would replace the hired guns brought in by plaintiffs and defendants.
Naysayers complain that this would undercut the right to a jury trial. But that doesn't wash. We have long had specialized traffic courts, family courts, tax courts and patent courts, among others. Surely medical courts could be established on the same constitutional footing as other specialized courts.
The idea calls for experimentation, and two bills have been introduced in the House and Senate to provide it. They would allow a few states to set up special courts as pilot projects to handle medical tort litigation.
These bills have broad bipartisan support. At least five states, including Virginia and Maryland, are already studying special health courts. And a Harris Survey found that 62 percent of Americans favor the idea.
The main opposition comes from plaintiff lawyers, and for an obvious reason: Medical courts would cramp their ability to present pseudo-science to clueless jurors and reap huge windfalls in contingency fees.
But defendants also play that game, which is why special medical courts are worth exploring. The truth is that in assessing medical evidence, most judges and juries miss the mark most of the time.
The Harvard study documented that fact, and Ostrom, the juror, told us why: When expert witnesses present complex scientific evidence, many jurors simply don't understand what the heck they're hearing.