Vioxx litigation. The second guessing begins.

The one thing I've learned over the last 25+ years is that the only people second guessed and more savagely treated by their peers then trial lawyers would be the poor dedicated souls who agree to coach little league baseball. The second guessing happens for many of the same reasons.

1. In the case of the little league coach he is surrounded in a public forum by peers,most often other parents, who wish they were coaching, but for a variety of reasons, usually lack of nerve or real competence, are not. The trial lawyer in their situation is being observed by a host of legal and other professionals who aren't shy about venturing opinions, but are often rarely if ever seen themselves standing in the court room representing an actual live client. 

2. With the little league manager, the people watching and critiquing him all either played, had a sibling play, or just grew up watching baseball. This of course qualifies them to endlessly second guess what THEY would have done in the 6th inning of the game that was just lost. The trial lawyer, along with all of his peers who think they know better, is now also surrounded by a legion of non-lawyers who watch court TV, CSI, Boston Legal and any of the other TV dramas, so of course they aren't shy on venturing an opinion either.

3. Last, but not least, the little league manager in almost every case gives thousands of hours of dedicated service to those who need it the most, the children/players, but is critiqued most viciously by those who appreciate him the least, the parents. The trial lawyer, despite the parody often presented, gives  thousands of hours of sweat, toil and personal sacrifice for people desperate for justice and who can least afford his skills, all while being cruelly critiqued and shredded in the press by those who need them the least and are typically most insulated from the vagaries of life that require engaging a trial lawyer.

Why do I point all this out, semi tongue in cheek? It is because while I am immersed in the world of mass torts, trial law, tactics and negotiation, I am always aware that there is a deeply personal element to all this and that it isn't some "game" that is won and lost. In case anyone missed it in the press accounts of the recent Vioxx verdict in  New Orleans, the widow of Richard "Dickey" Irvin was so distraught by the outcome she was in tears and unable to comment to the press as she left the courthouse. Does that sound like a game or fictional drama to you? How would like to have been the emergency room physician son-in-law of the deceased, who gave Vioxx to his father in law, only to find out later it might have very likely caused his death, and have to carry that question around in your head for the rest of your life? Thats no game there. Finally, how would you like to be the trial lawyer, bringing the case for a second time after mistrial, after the New England Journal of Medicine came out and said the VIGOR study wasn't entirely accurate, and that Vioxx caused a few more deaths then previously reported, but then having your top medical expert not allowed to testify that he felt Vioxx very likely contributed to the death of this plaintiff, and then having your case sent to the jury on a Friday before a three day weekend, which is a notoriously bad time for a plaintiff attorney to get a verdict? I'm sure Andy Birchfield doesn't find this to be a game either.

However, I and many others are encouraged by his answer to the press that "Merck intends to try every single case, and so do we." and I still firmly believe that the one trial at a time strategy is ultimately doomed to fail for Merck. Right now Merck has had a couple of key victories, and they will have more over time, but if anyone with a memory recalls, big tobacco won case after case after case until the public perception of the product, the process, the facts and the injuries caused by it finally caught up with them and justice in some measure was achieved.  

The great trial lawyer, Gerry Spence once wrote in his best seller, "With Justice for None" that the great tragedy of the American justice system is that very often there must be many cases tried and lost, lessons learned, scars accumulated before a lawyer really knows what he is doing in the court room, and in a case like Vioxx, before the coherent winning argument and facts are developed. Gerry likened the process to a surgeon just out of medical school trying his very best to save the life of his patient, but just not having the necessary experience and wisdom to "save the patient" or win the case. In his analogy, the bodies piled up are part of the cost of that surgeon learning his skills, and while eventually they will be brilliant, how many people have to lose their lives while the learning process continues.

Lets keep that analogy in mind as the Vioxx case proceeds. We can argue about what cases were brought, when they were brought, who brought them and in what jurisdiction. Eventually the winning formula and set of facts will be developed and at that time the one case at a time process will come to a screeching halt. Until then, as this proceeds, lets keep in mind the widows, the orphans, the friends and the families of those who brought the first cases, and who walk out of the court house with tears and unanswered questions that will haunt them for the rest of their lives.  

Posted on February 19, 2006 .