Just the verdict, please

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PETER H. SCHUCK, a Yale Law School professor, is the author of "Meditations of a Militant Moderate: Cool Views on Hot Topics" (Rowman & Littlefield), out next week.

A LITTLE MORE THAN a week ago, a Texas jury awarded $253 million to the widow of Robert Ernst, who died after taking the pain reliever Vioxx for eight months. (Merck pulled Vioxx from the market last September because of studies linking it to heart attacks in people who had taken it for 18 months or more.) Ten of the 12 jurors found that Vioxx caused the death, was a defective product and had an inadequate warning label, though the Food and Drug Administration had approved both the product and the label. When asked about the huge award -- which under the law governing damages will be reduced by 90% or more -- many of the jurors stated that they wanted to “send a message” to Merck, as the plaintiff’s eloquent lawyer had exhorted them to do in his closing statement.

The intuitive idea that juries can and should send messages to defendants has become a rhetorical trope of editorial writers and others. But this raises a vital question: Are juries good at sending messages? No, for an interesting reason: The jury, by its institutional design, is a poor communicator of complex regulatory messages to society.

Suppose that the manager of a company, nonprofit institution, sports team or other organization wishes to instruct the employees about how they must alter their behavior in the future. How would the manager design the organization’s communication system in order to achieve this? At a minimum, he would want to explain what the employees are doing wrong, what they must do to satisfy him, the reasons for this change, and how implementing it would not compromise the organization’s other goals. Wanting this message to be unmistakably clear, he would try to disseminate it with a single voice and provide for clarification of misunderstandings that might interfere with compliance.


Now consider how a jury operates and communicates. By design, its verdict is Delphic in the extreme. In almost all cases, it says only this: “We find the defendant liable (or not) and award damages in the amount of $_____.” In a complex case like Vioxx, the judge may also direct it to answer a few conclusory questions -- here, whether Vioxx was defective and caused Ernst’s death, whether Merck warned his doctor about the side effects, and how the award should be divided between compensatory and punitive damages. The jury does not specify the facts on which these conclusions are based or otherwise explain its verdict. If jurors tell interviewers more after they leave the courtroom, those (often conflicting) accounts are also part of a diffuse message.

To say that jurors act as “the conscience of the community,” as the cliche has it, is too simple. One’s conscience is morally significant only if one is responsible for the consequences of one’s decision. Jurors, however, are responsible only to their own sense of justice in the single case they hear; the law shields them from any larger responsibility for consequences. After rendering an unexplained, sometimes inexplicable verdict, they’re immune from legal liability for any error. As for mirroring the community, juries are disproportionately drawn from the elderly, students, the unemployed and others less likely to have conflicts excusing them from service.

What message, then, should Merck take from the Vioxx verdict? Perhaps the only clear one is that 10 jurors felt that Vioxx was too dangerous and killed Robert Ernst. The jurors in the 5,000 cases awaiting trial may feel differently.

This kind of communication does not tell Merck scientists and marketers how and why they went wrong so that they can get it right next time. It does not enable companies to predict the fate of other drugs that inevitably trade off significant benefits (Vioxx reduced pain for millions of arthritis sufferers without causing stomach ulcers) against risks of bad side effects (the autopsy supported Vioxx, and Ernst had taken it for only eight months). And it can only confound investors who must bet billions on such predictions far in advance if the market is to produce the drugs we need.

Exercising judgment about a drug’s safety, efficacy and labeling, which requires many years of scrutiny by technical experts, is the FDA’s job. If it is botching that job, Congress and the administration should fix it, say, by imposing a different risk-benefit standard, or hiring better scientists. But unless the manufacturer misled the FDA, the law should not allow juries, chosen at random and purged of expertise by lawyers during jury selection, to second-guess the FDA’s considered judgment. Civil jurors have a demanding, important job. But when they deliver opaque and tendentious messages concerning issues already resolved by experts, they send the wrong signals about their proper role in a democracy ruled by law.