Many bloggers/blawggers were taken aback by the recent verdict against Merck in the first of the Vioxx trials, mainly because it seemed that the jury failed to grapple with the scientific evidence and the tough causation issues presented by that case (see, e.g., Megan McCardle, Larry Ribstein, Ted Frank, and me, to name just a few). Among other things, all of us asked whether this verdict calls into question the jury system (as I put it, "nothing since the OJ criminal verdict has shaken my faith in juries as much as the details coming out of the recent verdict against Merck in the first Vioxx suit").
The seriousness of the problem is driven home by a WSJ($) op-ed today, in which Betsy McCaughey observed:
Before the trial began, according to the New York Times, Mr. Lanier knew that the autopsy was a problem, and he told his legal team that he was going to "browbeat" the pathologist into supporting his theory linking Vioxx to Ernst's death. How plausible is that theory? "To say that Vioxx did it because a blood clot you didn't find caused a heart attack that left no evidence of heart muscle damage is absolutely speculative," says Dr. Jeffrey Borer, chief of Cardiovascular Pathophysiology at Weill Cornell Medical College. According to an expert on arrhythmia, Dr. John Somberg, professor of Medicine and Pharmacology at Rush Medical College in Chicago. "It is more likely that [Ernst] had a primary arrhythmia" without suffering a heart attack first. Blaming the death on Vioxx, he says, "is very far fetched."
How could a jury believe such a far fetched tale? The jury may have been swayed somewhat by Mr. Lanier's fondness for quoting the Bible and his star quality in Texas as a Baptist preacher, populist Republican, and anti-abortion, anti-corporate crusader. But the fundamental problem, in every state, is that juries drawn from the general population, as wonderful as they are in most cases, lack the expertise to decide medical questions accurately. They often fail. How often? Up to 80% of the time, according to the Harvard Medical Practice Study of litigation in New York state. Similar studies in Utah and Colorado show that verdicts against defendants in medical malpractice cases are seldom justified by evidence. The same lack of expertise hampers juries from reaching fair decisions in trials involving medical products. The results conflict with our commitment to justice and fail to provide fast, fair remedies to actual victims.
So what do we do about it?
Like some others, I suggested that the time may have come to rethink the jury system. Self-described "crusty, longwinded trial lawyer" Beldar has been leaving eloquent defenses of the jury in the comments section of my and other blogs, however, upon which he has now elaborated in a blog post well worth reading. Beldar has been emphasizing two arguments: (1) juries are smarter than a lot of people give them credit for being and (2) maybe Merck's lawyers didn't do a very good job of presenting the evidence to the jury (a possibility I had noted but not emphasized). Hence, he argues that Merck lost
... not because the jurors were stupid or incapable of understanding them [i.e., Merck's scientific arguments], but because they found the arguments and evidence offered by Mrs. Ernst's lawyers and witnesses more persuasive, more accessible, more credible, more sensible.
Maybe.
In any case, in her WSJ op-ed McCaughey offers an alternative that would retain the juries that Beldar praises, while still strengthening barriers against junk science and support for good science; namely, specialized courts:
The jury's verdict shows that our system is failing to provide justice reliably in medical cases. The remedy? Specialized state medical courts, where judges stop lawyers and hired-gun witnesses (for the plaintiff or the defendant) from misleading juries with theories disguised as science, something Judge Ben Hardin failed to do in the Ernst case. ...
In state medical courts, the right to a jury trial, which is guaranteed in most state constitutions, would be preserved. The difference is that medical cases would be assigned to a few judges, who would hear similar cases again and again, recognize the same patterns of fact, and become expert at keeping "junk science" out of the courtroom. Judges would also be given training in scientific evidence and call neutral expert witnesses to help jurors assess conflicting testimony. In many states, this reform could be achieved administratively, without legislation. (New York, for example, has already established 170 specialized courts without legislation.)
I think this is an idea well worth exploring. In an article I co-wrote with my friend Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else Does - Boundedly), I explained that generalist judges often have difficulty handling technical issues and therefore tend to resort to decision-making heuristics that tend to increase error rates. Quoting law professor Eric Posner, for example, we observed that:
[C]ourts have trouble understanding the simplest of business relationships. This is not surprising. The judges must be generalists but usually they have narrow backgrounds in a particular field of the law, and they often owe their positions to political connections, not to merit. Their frequent failure to understand transactions is well-documented. One survey of cases involving consumer credit, for example, showed that the judges did not even understand the concept of present value. [Citing Jeffrey E. Allen and Robert J. Staaf, The Nexus between Usury, “Time Price,” and Unconscionability in Installment Sales, 14 UCC L. J. 219 (1982).] The judges struck down contracts because the credit price was higher than the cash price, not taking account of risk and of the time value of money. The authors showed that the implicit interest rates were reasonable. Even when judges do not misunderstand basic ideas, we must take their interpretation of facts on faith. Judges’ reasoning can be evaluated only against the canned facts described in the opinion, which themselves are the result of a fact-finding process that does not inspire confidence. ... Skepticism about the quality of judicial decision-making is reflected in many legal doctrines, including the business judgment rule in corporate law, which restrains courts from second-guessing managers and directors, and the many contract doctrines that restrain courts from second-guessing parties to contracts.
We then argued that this is one reason for Delaware's dominance of corporate law. Delaware has a court - the Court of Chancery - that more-or-less specializes in corporate law. As a result, those judges develop considerable expertise in dealing with the sort of business issues Posner says other judges struggle with. As Mitu and I explained:
Delaware chancellors face a different set of incentives than do federal judges faced with securities fraud claims (or state judges elsewhere faced with limited liability issues). As is true of everyone, the rationality of Delaware chancellors is bounded. As with all judges, Delaware chancellors are time-and resource-constrained. Yet, the Delaware chancellors have considerable incentives to develop specialized expertise in dealing with complex corporate law issues arising in the context of sophisticated financial transactions. In contrast to federal judges who only decide securities cases episodically, Delaware chancellors decide a lot of corporate law cases on an on-going basis, which makes it rational for them to devote effort to mastering both doctrine and the financial world to which the doctrine applies. Because of Delaware’s prominence in corporate law, the reputation of a Delaware chancellor depends mostly on his or her ability to decide corporate law matters quickly, thoroughly, and accurately. Hence, the payoff to devoting effort to such cases is far higher than is the payoff to a federal judge for devoting effort to securities cases. Conversely, given the small size of the Delaware judiciary and their state’s prominence in corporate law, there likely would be a considerable reputational hit if a Delaware chancellor tried to rely on heuristics.
Setting up courts to specialize in technical medical and scientific issues, as McCaughey proposes, thus strikes me as a perfectly plausible compromise that retains the benefits of the jury system (if any) while still being likely to constrain bad science and bad arguments.
