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Fraudulent Claims in Mass Tort Litigation:

Writing in the N.Y. Sun, AEI's Ted Frank notes that of the eleven Vioxx trials so far, there is reason to at least suspect that plaintiffs were untruthful about their exposure to Vioxx in five of them. Fraudulent claims in mass tort litigation have ample precedent, as in the fen-phen settlement, and the silicosis litigation, the latter of which had a strong precedent in the asbestos litigation.

te (mail):
Interesting. Does Ted Frank address the fact that in every single one of those trials, Merck engaged in a fraudulent coverup of the dangers of Vioxx?

I am guessing not since Frank is on big-pharma's payroll
8.8.2006 1:16pm
Tennessean (mail):
Without introduction, I offer this:

"X is mass tort plaintiff who believes stupid thing Y or does bad thing Z, therefore that's a black mark against mass tort plaintiffs" -- with zero explanation for why you think the mass tort plaintiffs are especially likely to do Y or Z (except that this one particular mass tort plaintiff happened to do it) -- is an argument that reveals more about the speaker than it does about the mass tort plaintiffs.
#1155011555 (alterations in italics).

(Of course, even the assertion of "ample precedent" is not enough without context, costs, or comparisons.)
8.8.2006 1:21pm
Richard Aubrey (mail):
Years ago, the Special Master of the Dissed-at-Denny's settlement sent me a letter telling me to get my paperwork in so I could get my $37k.

In following this up, I discovered there was a mistake. I wasn't a plaintiff. I was a witness. You may imagine my surprise. Apparently, I had seen something terrible at the Denny's in Flagstaff. I had never been to Arizona at the time. I got the names of the other witnesses and discovered they all lived in Michigan, within twenty miles of me. I talked to three of four and none of them had been to Arizona, either, nor had they seen anything amiss at the Flagstaff Denny's.

I called Denny's about this and discovered they were too beaten-down to consider any action at all. I imagine that trying to fight this particular complaint would have them called "racist" by all the folks whose job it is to lie about such things.

For my efforts, they didn't even send me a cert for a Grand Slam breakfast. So, to hell with the spineless jerks. Also big-tort lawyers, the lying, amoral scum.
8.8.2006 1:23pm
Tennessean (mail):
Amber: And? There's something flawed about everything (except, if you're into that sort of thing, the Forms).
8.8.2006 2:08pm
Falafalafocus (mail):
Amber,
You should speak to Professor Bernstein about the address, or as I like to call him, Big Smart Guy. I'll settle for Big Pharmacy to provide me with Big Paper Cups (so I can then swallow the argument made by Big Tennessean).
Speaking of which, Tennessean makes an interesting analogy. The problem with the analogy is that Professor Volokh was discussing the attempts by opponents of religionists/athiests to use the religionist's/athiest's crasy beliefs which are obviously not necessarily a part of the religious/anti-religious faith as a means to then attack the religion/anti-religion. In contrast, a big tort lawyer may be acting completely ethically in all or most of her cases, but when rampant fraud in big tort litigation seems to be inherent in the concept of the litigation, then I think it is fair game to make the argument.
That and I'm a friend of Big ____ (pick your favorite hated enemy).
8.8.2006 2:12pm
TKBC (mail):
To TE:

Ted frequently discloses all affilliations with corporate interests, past or present. Even if he were on "the payroll", which I doubt, his take home pay would be dwarfed by what plaintiffs' attorneys hope to bag.

Further, what if Merck covered up a risk, but no one was proved to have been harmed by the coverup? Even if the harmless cover up was deemed fraudulent, does it excuse the fraud being perpetrated by some individual plaintiffs?
8.8.2006 3:14pm
te (mail):

Even if he were on "the payroll", which I doubt, his take home pay would be dwarfed by what plaintiffs' attorneys hope to bag.

I hope to bag a 14 point buck this fall, but I doubt I will. Merck has made huge $$$ from Vioxx, their defense attys are
making millions, and the only way those plaintiff's attorneys get a cent is if they win jury trials.


Further, what if Merck covered up a risk, but no one was proved to have been harmed by the coverup?

You might want to take a few minutes and look through the article in the New England Journal of Medicine regarding what Merck knew and didn't disclose. There isn't an "if" there.

Even if the harmless cover up was deemed fraudulent,

Telling the public and doctors that a drug is perfectly safe, instead of disclosing that it increases risks of adverse cardiovascular events (aka, strokes and heart attacks) 400 percent ain't harmless.


does it excuse the fraud being perpetrated by some individual plaintiffs

No, of course it doesn't. But you are using the same sort of argument by misdirection that Mr. Bernstein loves to use, i.e. "Never mind about children being blown apart in Lebanon and Israel, lets really delve into the mystery of who the guy in the green helmet is in some photographs taken after a bombing."

Here, not a word about the conduct of Merck, which has killed or injured boatloads of people - and instead a focus on some SUPPOSEDLY fraudulent claims.
8.8.2006 3:49pm
David M. Nieporent (www):
But you are using the same sort of argument by misdirection that Mr. Bernstein loves to use, i.e. "Never mind about children being blown apart in Lebanon and Israel, lets really delve into the mystery of who the guy in the green helmet is in some photographs taken after a bombing."


Te, you're using the same argument ideologues always use: "Who cares if the facts are right: my enemy is evil, so it's okay."
8.8.2006 7:03pm
te (mail):

Te, you're using the same argument ideologues always use: "Who cares if the facts are right: my enemy is evil, so it's okay."

Well, that is a succinct argument, but it doesn't have any basis in fact.
8.8.2006 7:06pm
Gorjus (mail) (www):
There is also a difference between these recent, high-publicity Vioxx single-plaintiff trials and the mass tort litigation of the past. As a Mississippian who did plaintiff's work, including mass tort, I know first-hand about how folks tried to create claims--including falsifying prescriptions to demonstrate they'd used a drug they hadn't.

Those days are over. With the scrutiny now attached to mass tort and the shifts in the civil justice system, you see less "roll-over" from the big defendants than you used to. There's also a corresponding reluctance on behalf of the plaintiff's bar to take cases that are a) capped in terms of damages, b) heavily scrutinized, and c) have a negative publicity factor.

As Te noted above, we're acting as though there was fraud on behalf of the plaintiffs when we KNOW there was fraud on behalf of the defendant. This "brainwash" is surprising and disappointing.
8.8.2006 7:13pm
Ming the Merciless Siamese Cat (mail):

the only way those plaintiff's attorneys get a cent is if they win jury trials.


And the only way someone can get the Yellow Jersey is by winning the Tour de France. How does that mitigate Floyd Landis's cheating to do so?

The folks who believe that Merck engaged in misconduct should also be outraged by fraudulent conduct by some plaintiffs and their lawyers. In most of the major mass tort cases there is a limited amount of money available and every dollar that goes into the pocket of a fraudulent plaintiff and his counsel is a dollar less that is available to compensate those who have suffered actual harm.

Furthermore, antics like those described in the above post increase the likelyhood of meaningful tort reform that will limit plaintiffs' ability to collect damages.

It seems to me that 'plaintiff oriented' commenters, if they are actually interested in justice, would be at least as offended by efforts to game the system as are those with a defense orientation. Sadly, what I see here is yet another case of 'my team good, your team bad'.
8.8.2006 7:17pm
Steve:
I sure don't see equal outrage emanating from the anti-plaintiff posters here, nor (unsurprisingly) from Ted Frank in the original article. So the demands that pro-plaintiff posters direct their outrage towards both sides strike me as rather frivolous.

I also note that a post seems to have been mysteriously deleted from this thread.
8.8.2006 7:23pm
Ming the Merciless Siamese Cat (mail):
Steve:

Perhaps that's because the subject of the article is whether or not plaintiffs are systematically engaging in fraud in the Vioxx litigation and not whether Merck engaged in a cover-up of Vioxx's risks. It's absurd (and also irrelevant) to expect the author to spend equal time decrying Merck's alleged concealment. Just as it would be absurd (and also irrelevant) to exect a writer addressing Merck's alleged cover-up to give equal time to allegations of alleged plaintiff misconduct.

The two are seperate issues and neither one sheds any light on the other. If Merck concealed risks, that is not mitigated by any plaintiff misconduct. Similarly, if plaintiffs are engagning in a fraud on the courts, that is not mitigated by the fact that Merck is a bad actor.

Since the question at issue in this particular post is plaintiffs alleged fraud and not Merck's alleged cover-up, the efforts of the plaintiffs' bar to change the subject is a telling exercise in obsfucation.
8.8.2006 7:47pm
te (mail):

And the only way someone can get the Yellow Jersey is by winning the Tour de France. How does that mitigate Floyd Landis's cheating to do so?

The difference is that the outcome of the Tour is not determined by 12 jurors. If there is fraud by plaintiffs and it is as clear as Mr. Franks seems to think it is, I would think that a capable defense attorney (there must be a couple out there somewhere) would be able to show that to the jury.


The folks who believe that Merck engaged in misconduct should also be outraged

In theory, yes. But the meta point here is that people like Ted Frank who makes a living sucking on the corporate tit, only like to talk about those nasty, dishonest, fraudulent plaintiffs while uttering nary a word about equally reprehensible conduct by his corporate paymasters.

I'm just trying to bring a little balance to the discussion.
8.8.2006 7:48pm
Ming the Merciless Siamese Cat (mail):
TE:

Your faith in the wisdom and impartiality of south Texas juries is, I suggest, belied by decades of evidence to the contrary. Indeed, since you seem like an intelligent person, I seriously doubt that, deep in your heart, you believe it yourself.
8.8.2006 8:00pm
ray_g:
Laying aside discussion of the merits of any particular case, in general, if it is proved that there are fraudulent claims and the plaintiff's lawyers knew it, what, if anything happens to the lawyers?
8.8.2006 8:06pm
Ming the Merciless Siamese Cat (mail):
TE:

One more point and then I'll stop monopolozing this thread.

If Floyd Landis was voted winner of the Tour de France by a panel of 12 of his neighbors, would you seriously claim that we should therefore ignore the objective evidence of his positive steriod test?

And make no mistake, the testimony regarding Garza's Vioxx use was flat out perjured. Vioxx samples, like virtually all free promotional samples, are provided to doctors by pharmaceutical companies in special blister packs, labled "Professional Sample -- Not for Resale". For the plaintiffs' testimony to be true, the doctor would have had take the time to individually removed each pill from its packing and then place it in an unlabled vial. No doctor is going to do this nor is there any reason whatsoever for him to do so, and there are very good reasons not to, since the directions and warnings are all contained within the original packaging.

Furthermore, the decedant's doctor testified that he did not do this for Garza, nor had he ever done this for any patient. Indeed, he testified he'd never given Garza any Vioxx, nor was there any indication that he'd done so in Garza's medical chart (which there should have been). Since the doctor had been dismissed from the litigation (once diversity was defeated) there was little motive for him to commit perjury.
8.8.2006 8:29pm
te (mail):

Your faith in the wisdom and impartiality of south Texas juries is, I suggest, belied by decades of evidence to the
contrary.

If I recall correctly, I think that Merck got verdicts against it in NJ, among other places.

I don't doubt that you sometimes get bad juries in South Texas, just like anywhere else. And you get "bad" going both ways.

It is an imperfect system, but I think it is the best one possible. Not unlike democracy.
8.8.2006 8:30pm
Steve:
Perhaps that's because the subject of the article is whether or not plaintiffs are systematically engaging in fraud in the Vioxx litigation and not whether Merck engaged in a cover-up of Vioxx's risks.

Not really. The true subject of the article is how fraud by plaintiffs prevents Merck and similarly-situated companies from negotiating a cost-effective global settlement, because the type of fraud that can at least be detected in an adversary proceeding is guaranteed to slip through the cracks of a bureaucratic claims process.

I think it's a valid and interesting point, and far more worthy of discussion than the "are plaintiffs or defendants morally worse" pissing contest that this thread has turned into.
8.8.2006 8:43pm
te (mail):
Ming - and I will respond to your points and also vacate the thread for a while . . .

If Floyd Landis was voted winner of the Tour de France by a panel of 12 of his neighbors, would you seriously claim that we should therefore ignore the objective evidence of his positive steriod test?

I don't begin to know how to answer that. Greg Lemond was my hero when I was in Jr. High school. If Landis did this, it is very, very sad.


And make no mistake, the testimony regarding Garza's Vioxx use was flat out perjured.

I haven't read the transcript and I will take Frank's summary with a block of salt. I guess the bigger question is why if this is all just so crystal clear to anyone with a pulse, why did 9 of 12 or more (or whatever it was) jurors disagree? If it is because they are just stone cold stupid, I assume it will get tossed on appeal.

One final point, you mention that the Dr. had no reason to be biased. If it were only so. Doctors beat the tort-reform drum as much as anyone and, unfortunately, many doctors seem to have a real animus towards the plaintiff's bar. I had one treating neuro flat out lie on the stand to screw a plaintiff he had treated where there Dr. was not a defendant and his care was not at issue at all. He privately stated that he thought the suit was "frivolous" and I guess he just decided to "help" the jury reach the "right" verdict but providing the testimony that would get them there, regardless of what the truth was. It happens. I have no idea if that happened in Garza or not.
8.8.2006 8:52pm
Ming the Merciless Siamese Cat (mail):
TE:

Having once served as Asst. CLO at a health care company and having married a physician, I concede your point regarding MDs' animosity towards the plaintiffs' bar. Your anecdote, unfortunately, rings true.

However, in the Garza case, even discounting the doctor's testimony entirely, the plaintiffs' own testimony as to the manner and form in which the decedant received the medication is beyond incredible.
8.8.2006 10:17pm
Ted Frank (www):
For the record, I receive no money from Big Pharma other than a few hundred dollars in dividends as a shareholder in Bristol-Myers Squibb, and my 2006 thinktank paycheck will be less than 30% of my 2004 gross income. I billed some hours to Merck when I was an attorney at a big firm, but it had no impact on my pay, because I would've been paid the same if I had worked for a different client. If my views were available to the highest bidder, I could make a lot more money as a plaintiffs' attorney than as a thinktank fellow.

But even if I am "biased" (rather than simply reacting to what I have learned in my experience and research), Te's attack is ad hominem, and fails to address the accuracy of anything I've said in the New York Sun.

These doctors admittedly certainly had reason to have animus against the plaintiffs' bar, because they were sued purely for the fraudulent reason to defeat diversity jurisdiction, and dismissed once it was clear that Merck would not be able to remove the case to federal court. But if the doctors were lying, it would have been very easy to find other patients who received samples of Vioxx (or other drugs) in "brown vials." TE's pretzeled defense of the brown-vial theory, as other posters have noted, violates any conception of Occam's Razor, especially given the shifting testimony of the two witnesses to the "brown vial" theory, and the demonstrated shamelessness of the plaintiffs' lawyers on other matters.

I've discussed the allegations against Merck (including the NEJM editorial) at Point of Law and in an AEI working paper. There has yet to be a demonstration of any fraud by Merck (and the minority of juries to say otherwise were led to that conclusion with the help of expert testimony that violated Texas and New Jersey rules of evidence), and TE's claims of 400% increases etc. aren't backed by the evidence now or then, but there's only so much one can say in the limited space allotted to newspaper op-eds.
8.8.2006 10:41pm
t e (mail):

If my views were available to the highest bidder, I could make a lot more money as a plaintiffs' attorney than as a thinktank fellow.

Why don't you give it a try and see if that is true? You could be one of the honest ones. You'd be doing everyone a service.

TE's pretzeled defense of the brown-vial theory,

I ain't defending the brown-vial theory. I have no idea whether it is credible and I haven't read the transcripts. It may be pure nonsense as far as I know. But if so, I do wonder why it wasn't as obvious to the jurors as it was to some observors. I am just guessing that Merck spent more than a few minutes showing all of the problems with plaintiff's evidence and claims.

violates any conception of Occam's Razor, especially given the shifting testimony of the two witnesses to the "brown vial" theory, and the demonstrated shamelessness of the plaintiffs' lawyers on other matters.

As opposed to the immaculate honesty of Merck and corporate hoes in general?
There has yet to be a demonstration of any fraud by Merck (and the minority of juries to say otherwise were led to that conclusion with the help of expert testimony that violated Texas and New Jersey rules of evidence), and TE's claims of 400% increases etc. aren't backed by the evidence now or then,
8.9.2006 12:36am
t e (mail):
Sorry for the double post -

There has yet to be a demonstration of any fraud by Merck (and the minority of juries to say otherwise were led to that conclusion with the help of expert testimony that violated Texas and New Jersey rules of evidence), and TE's claims of 400% increases etc. aren't backed by the evidence now or then,3

The NEJM certainly seemed troubled by Merck's claims and conduct. And Mercks own studies demonstrate a marked increase in adverse CV events, a 400% increase in risk specifically. Look at the APPROVe study for example.
8.9.2006 12:38am
therut:
I have a patient in her 60's that got breast implants about 20 years ago. She has no problems with the implants. No symptoms. Nothing. She somehow found out she might be entitled to about 5,000 dollars. She got a mammogram and low and behold she was so happy some silcone had leaked. She is on her way to some money.
8.9.2006 1:40am
Amber (www):
APPROVe does not show a 400% increase in risk. Moreover, APPROVe was what caused Merck to withdraw Vioxx from the market.

As the Wall Street Journal demonstrated in an article a few months ago, NEJM's editorial was based on a public-relations decision to make as much noise as possible smearing Merck to distract from bad publicity from its own actions in the Vioxx affair that was going to be exposed by testimony. Merck did not withhold any information from NEJM; doctors who received NEJM reprints got updated data; the Vioxx label had updated data; the difference between what was in NEJM and the updated data was non-material, because what was statistically insignificant was still insignificant and what was statistically significant was still significant.
8.9.2006 7:21am
Amber (www):
The 6:21 am post (and this one) is not by Amber, but by Ted Frank. I am using Amber's computer, and it is reflecting Amber's information instead of my own.
8.9.2006 7:23am
jallgor (mail):
TE,
Not sure why you suggest Mr. Frank should try his hand at being a plaintiff's atty. Unfortunately, honest plaintiffs lawyers don't make a lot of money and therefore they are hard to come by. If I were you, I would worry a little less about big corporate and the money they can throw around. Worry more about the multiple billionaire plaintiff's lawyers (yes that's with a B) and the sway they have on our political and judicial system. I can probably name at least 5 billionaire plaintiff's lawyers. I can't name a single billionaire defense laywer or pharma CEO and I'd be very surprised if any exist (but I would be happy to hear otherwise).
8.9.2006 10:03am
Mr. L (mail):
I guess the bigger question is why if this is all just so crystal clear to anyone with a pulse, why did 9 of 12 or more (or whatever it was) jurors disagree?

Because these cases aren'tactually about the plaintiffs themselves. From what I've read, the lawyers focus on the 'deception' to the exclusion of all else, including establishing the increased risk to their clients -- which is actually really important, because most of the ones so far are so riddled with obesity and preexisting problems that a heart attack seemed like a practical certainty even without Vioxx.

I guess the hope is that the jury will ignore the facts and assign damages based on pure outrage. It works for some (these) juries, but others don't buy it. I recall at least one of the Merck wins had the jury members explaining that they thought the case had merit, but couldn't assign damages because the lawyers hadn't bothered with, y'know, establishing the harm to the plaintiff.

And to the guy earlier, the frauds to far are definitely relevant -- if you took a random sample of the cases and nearly half contained manufactured testimony (an actual criminal offense, to boot), what you infer about the sample as a whole? Especially the lawyers, as you better believe they've vetted these plaintiffs and know what their problems are.
8.9.2006 12:38pm
t e (mail):
Ted Frank

So you are saying that there is no evidence of fraud on Merck's part, that there isn't a significant risk above placebo and that Merck did everything right. Okey dokey. I wonder why they withdrew the drug from the market. It was making them alot of money. Puzzling.



As the Wall Street Journal demonstrated in an article a few months ago, NEJM's editorial was based on a public-relations decision to make as much noise as possible smearing Merck to distract from bad publicity from its own actions

Your accusations are so absure they are laughable. But then I don't know what else to expect from someone who is on the payroll of an organization for which Ken Lay was a trustee.

Please do go on and tell us more about corporate honesty . . .
8.9.2006 2:42pm
Ted Frank (www):
TE, why do you misrepresent my arguments? I didn't say "there isn't a significant risk above placebo." I said there isn't a 400% increase, and that there wasn't evidence of a signficant risk until the APPROVe study. I guess the answer why you misrepresent my arguments is because you are unable to respond to the actual arguments I do make.

For example, you dismiss the well-documented WSJ story about the NEJM editorial on your ipse dixit without addressing any of the facts therein.

You conclude with a double ad hominem which is wildly irrelevant, since Lay and I were never in the same organization, and no trustee has ever influenced so much as a punctuation mark in any of my writings.

In short, you respond to none of my propositions of fact and engage solely in vitriol that is substantially below the usual high level of discussion on the Volokh Conspiracy comments. I gather it's not worth responding to you further, since you seem to have no interest in honestly discussing the topic.
8.9.2006 5:09pm
t e (mail):
I said there isn't a 400% increase


, and that there wasn't evidence of a signficant risk until the APPROVe study. I guess the answer why you misrepresent my arguments is because you are unable to respond to the actual arguments I do make.

For example, you dismiss the well-documented WSJ story about the NEJM editorial on your ipse dixit without addressing any of the facts therein.

You conclude with a double ad hominem which is wildly irrelevant, since Lay and I were never in the same organization, and no trustee has ever influenced so much as a punctuation mark in any of my writings.

In short, you respond to none of my propositions of fact and engage solely in vitriol that is substantially below the usual high level of discussion on the Volokh Conspiracy comments. I gather it's not worth responding to you further, since you seem to have no interest in honestly discussing the topic.
8.9.2006 6:35pm
t e (mail):

I said there isn't a 400% increase

Its in the scientific literature - if anyone has an interest they can look up the NEJM articles online.


you dismiss the well-documented WSJ story about the NEJM editorial

Ever since the WSJ editoral page got fixated on what Bill Clinton did with is weinie, I haven't accorded them much credibility. Do they have new managment over there?


since Lay and I were never in the same organization, and no trustee has ever influenced so much as a punctuation mark in any of my writings.

Aren't you at the AEI? Wasn't he a trustee there?

There is no need for the trustees of the AEI to "influence" you writings since you wouldn't every have been hired there if your views didn't mesh with theirs.

honestly discussing the topic.
8.9.2006 6:40pm