Time to Scrap Juries?

Radley Balko doesn't have any answers to the $259 million verdict against Merck in the Vioxx case.

bq. As McCardle notes, proving causality in liability cases often requires a grasp of science most lay juries simply aren't capable of, though in this case the problem seems to be that the jury didn't even feel like trying. Complex securities fraud cases can be even worse. And what do we do when a rash of suits moving ahead of the science forces a company to settle (settling making more economic sense than fighting mutliple suits in multiple venues) -- as Dow did in the breast implant cases -- and science later conclusively shows the company wasn't liable?

The jury is an institution that I think in general really works well. Most cases where they give awards that seem unreasonable to the general public boil down to just a few issues: stupid media coverage (as in the McDonalds coffee case, which seems like a perfectly reasonable award given the actual facts), poor jury selection by the loser or a flawed jury selection process, or improper jury instructions.

That the jurors did not receive proper instructions (or didn't listen to them) seems pretty clear to me. For one thing, jurors are allowed to ask questions of witnesses. If, as juror John Ostrom said, "We didn't know what the heck they were talking about," *how* could the jury find in favor of the plaintiff, especially for that amount of money, without asking questions until they *did* understand what Merck was talking about?

It's ultimately the responsibility of the defendant's attorneys and expert witnesses to make sure the jury understands their side of things. In this case it appears that neither did a very good job when it came to picking the jury, instructing the jury, or giving testimony.

In any case (no pun intended), I don't think it's time to scrap juries yet. However, it might be a good time to take a close look at the actual process by which a civil trial is conducted.

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I agree with the two

I agree with the two comments above. I think the root problem is actually found in the parenthetical observation, "settling making more economic sense than fighting mutliple [sic] suits in multiple venues." Juries are but one facet of a profoundly dysfunctional legal system with nonsensical processes and massively distorted economic incentives at every turn. Civil law and jurisprudence in this country have become such a preposterous pile of posterior-product that it seems to me that simply chucking the civil courts and just having "settling" be the default method of resolving non-criminal conflicts, either one-on-one or with an arbitrator, would make a lot of sense.

I agree with Cornelius. I

I agree with Cornelius. I believe the concept of punitive damages is flawed, amounting to an end-run around the criminal justice system. It gives a civil jury the power to define a crime and impose an (often astronomical) fine for it, in an ex post facto manner and without the protections given a defendant in a criminal trial.

It is astonishing how often an award of damages that seems excessive turns out to be mostly punitive damages, with the real damages being much more reasonable.

It occurs to me that a major reason why the defense was unable to bring the science down to the level of the jury is the prohibition against leading the witness on direct examination. This rule is generally sound, but it hinders the attorney from restating the expert's testimony in a more understandable form. Perhaps this rule could be relaxed in some way for expert witnesses? This has its own pitfalls.

I believe the greatest mistake by the defense was to fail to prepare their expert witnesses to give testimony comprehensible to the jurors. Then again, the comments made after the trial by the jurors suggest that anything above the first-grade level would have gone over their heads, and it's pretty hard to coach an expert witness down to that level.

It has never been clear to

It has never been clear to me why civil cases are not limited solely to restorative awards (which in this case amounted to $450,000). Punishment (i.e., punitive awards) should be reserved for when someone is convicted in a criminal court. If Merck was so criminally negligent as to warrant a quarter-billion dollar fine, then they should be charged as such, and put through criminal proceedings. If they were not, then attempt as best one can to compensate this woman for the loss of her hubsand (as tenuous as the causality is) and be done with it.

Okay, I'm still confused.

Okay, I'm still confused. Vioxx causes problem X. Plaintiff's husband died of problem Y. I can see how the details might be difficult to understand for a layperson (like me) but why didn't the defense attorney lay things out like that?

Yeah, yeah. I'm thinking

Yeah, yeah. I'm thinking that 'peer' needs to be updated for our modern times.

As I'm sure you know, Brian,

As I'm sure you know, Brian, that's not what “peers” means. We're all peers over here.

I think that "jury of your

I think that "jury of your peers" would seem to preclude non-scientists or academics from such a trial, since the defendent is a Pharmaceutical co.

Why not empanel expert juries?

I think that those who are

I think that those who are blaming the jury are mistaken. The jury can only deliberate the case that is presented to them—not the law or the case that should have been presented to them. I haven't read the transcript of the trial (and probably won't) and I doubt that anyone else here has, either. Or Megan McArdle. She's basing her analysis on what she's read in the Wall Street Journal and the Journal is not precisely a neutral reporter. Perhaps we should hold our water until we have more information.

I've served on several juries and in each case the jurors have taken their responsibilities seriously and deliberated the case to the best of their ability. I don't know what things are like in Texas but here in Illinois juries aren't composed of ne'er-do-wells, incompetents, and the superannuated anymore. Professionals and other people with jobs aren't automatically excused.

Michael, it also gives the

Michael, it also gives the plaintiff an incentive to seek out wrongdoing.

What I don't understand is

What I don't understand is why punitive damages go to the plaintiff. If they are punitive, their purpose is to punish the defendant—it makes no sense to award those damages to the plaintiff, who was presumably already compensated by the compensatory damages. It also sets up an incentive system virtually guaranteed to produce too many lawsuits.

A friend of mine used to say

A friend of mine used to say "12 people who can't get out of jury duty are *not* my peers."

The jury system has evolved over many hundreds of years and I think that we tinker with it at our own peril.

As for punitive damages, I do not think it's necessarily a bad thing to perform an "end run" around the criminal justice system. For one thing, the criminal justice system is frequently inadequate to address certain crimes. For example, McDonald's callousness to the lady their coffee gave third degree burns to and who spent a year in recovery really should be punished, but it's sure as heck not illegal. And who would you give the punitive damages to other than the plaintiff? The oh-so-worthy State? The court? If what you're concerned about is the ridiculous amount of money the attorneys get, perhaps we should give that some thought when people claim we have "too many lawyers." I'd say not enough if they aren't competing those percentages down.