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Author: rog12 One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 41614  
Subject: MRK-stick to the facts Date: 8/21/2005 6:02 PM
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I have followed this board with great interest for about a month. During that time I have read about a thousand posts and have been much impressed with the ability of many who post here to analyze companies. However, I have not been impressed with some of the comments made about the Texas trial. In my opinion they were not based on evidence and merely represented the bias of the writers.

Let me start with my credentials for this criticism. I'm an appellate lawyer with 45 years of experience. I have handled hundreds of appeals in state and federal courts representing both plaintiffs and defendants..

First the damages. A recent post complained about the economic damages, stating that they were $24 million. Correction, they were $450,000, about what you might expect for a department manager at WMT. The mental anguish and loss of companionship damages were 24 million. These are always very subjective in nature and depend a great deal on the emotions created in the jurors by the trial. I don't know the Texas law, but if the trial judge thinks that they are excessive he may be able to reduce them. The 10 jurors who voted for the plaintiff must have felt that MRK acted outrageously, because they added 229 million in punitive damages. According to what I have read this must be reduced to $750,000 because of the Texas cap on punitive damages.

Now let's go to BuildMWell's post 8609 in which he approvingly referred to JrByrdmann's post 3992 on the Merck board. I have the greatest admiration for BuildMWell's invention of the BMW method and his astute security analysis. The Merck board post was not up to his high standards.

The allegation that corporations cannot defend themselves because of 40 years of brainwashing by liberals is nonsense. sckor answered this quite well in post 8621 in which he pointed out that Texas is a very conservative state. It is very unlikely that the jury was composed of 10 liberals and 2 conservatives. The area in which the trial was held has been described as semi-rural. Such areas tend to be conservative, but there is also a tendency for people to look after their own. Conservatives can feel sympathy for their neighbors. This is as good a hypothesis as the "liberal" brainwashing notion. The fact is, none of us know anything about the individual jurors, and anything we say about them is pure speculation.

I know of no evidence that attorney advertising has increased verdicts.
My experience is that attorneys who handle high profile cases don't advertise and those that do advertise settle most of their cases. I see nothing wrong in telling people that if they are injured through the fault of someone else they might be able to receive compensation. That is the law and there is no harm in telling the truth.

The assertion that the jurors were too ignorant to get out of jury duty is pure garbage. Many people, including myself, consider it a citizen's duty to serve on juries. I would like JrByrdmann to site some evidence that the Texas jurors were exceptionally ignorant. I doubt that he has any knowledge about them. If anything, his statement indicates that he is profoundly ignorant of his own biases.

The assertion that corporations can't win jury trials is incorrect, although it is often hard for them to do so. The tobacco companies were quite successful until recent years, when evidence turned up that they not only knew that tobacco was both harmful and addictive, but that they purposely made it more addictive. It can be reasonably argued that they deserved what they got.

Other corporations also get what they deserve at times. The recent misdeeds of corporate executives and Wall Street firms are too numerous to mention here. The Merck jurors heard evidence regarding both liability and corporate misdeeds that supported the plaintiff's case. Whether that evidence will hold up on appeal remains to be seen. My personal opinion from the little I have read is that the liability evidence is thin and some of it may be thrown out on appeal. However, my experience tells me that unless you sat in the court room and heard all of the evidence or read the trial transcript, examined the evidence and read the jury instructions, you cannot make an informed criticism of the jury's verdict. I have handled many cases in which, after I carefully examined the entire record, I still was not sure who was right on the facts. The triers of fact had to do something and they ruled for one side or the other. People who read brief accounts in the newspapers or heard 30 seconds worth of news on TV about the cases were in no position to criticize.

This has gone on too long. I'll end with a plea that you analyze complex cases with the same degree of care and fidelity to the evidence as you use to analyze securities.

Regards to all,

Joe





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Author: gebinr Big gold star, 5000 posts Top Recommended Fools Old School Fool Supernova Phoenix 1
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Subject: Re: MRK-stick to the facts Date: 8/21/2005 7:27 PM
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Excellent. Thank you.

rog12 added to your Favorite Fools list

gebin


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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8654 of 41614
Subject: Re: MRK-stick to the facts Date: 8/21/2005 8:28 PM
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Great post!

The 10 jurors who voted for the plaintiff must have felt that MRK acted outrageously, because they added 229 million in punitive damages.

What these jurors said was that drug companies should go broke. 229 million in punitive damages per plaintiff is absurd. I hope these jurors never need any drugs. This is my opinion.

I'm not a lawyer. It is my understanding that people have a right to be tried by a jury of peers. How are these 12 jurors peers of a corporation?

Denny Schlesinger


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Author: ravvt Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8655 of 41614
Subject: Re: MRK-stick to the facts Date: 8/21/2005 8:55 PM
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How are these 12 jurors peers of a corporation?

Under the law, a corporation has the legal rights of a person. If 12 jurors off the street are not able to sit as a jury, who is?

I hope you don't want a jury pool made up of Key Lay, Bernie Ebbers, Dennis Kowzlowski, John Rigas and other corporate CEOs to provide the "peers" that you insist must listen to the evidence. We were not on the jury and as such we did not hear the exposition of evidence that was presented by the two opposing sides. Given the verdict, the jury must have seen / heard convincing evidence that led them to believe that MRK was to blame for this situation.

The oversized penalty could be a result of a group of corporation hating individuals influencing the jury OR the plaintiffs lawyers MAY have demonstrated a degree of recklessness in MRK's behavior to warrant the outrage. With an estimated 60,000 deaths attributed (by the FDA drug safety whistleblower) to this drug, there will be an ample number of future trials to determine which of these alternatives is closer to the truth....

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Author: garyhw Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8656 of 41614
Subject: Re: MRK-stick to the facts Date: 8/21/2005 9:51 PM
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What these jurors said was that drug companies should go broke. 229 million in punitive damages per plaintiff is absurd. I hope these jurors never need any drugs. This is my opinion.

Goofyhoofy on the MRK board makes a great point on the 229 Million in punitive damages. To quote: "\The $229 million punitive damages figure was not picked at random, but referred to a 2001 Merck estimate of additional profit the company might make if it could delay an F.D.A. warning on Vioxx's heart risk.

In interviews after the six-week trial, jurors said they had concluded from the testimony and documents presented by Mrs. Ernst's lawyers that Merck was long aware of Vioxx's potential heart risks but hid those risks from patients. To the jurors, the evidence added up to a mass of damaging bad facts that overwhelmed the company's defense.
"

http://boards.fool.com/Message.asp?mid=22918486

Gary

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Author: rog12 One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8657 of 41614
Subject: Re: MRK-stick to the facts Date: 8/21/2005 10:45 PM
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Denny

"Jury of ones peers" is a very old term derived from English law. I'm not certain, but it may go back as far as the Magna Carta. In any event, it reflects the social milieu of the times. What you are entitled to in the United States is a jury composed of citizens of the district covered by the trial court who are impartial and capable of fairly evaluating the evidence. As with all things human that doesn't always work out. Sometimes prejudice or undue emotion creeps in. The trial judge or the appellate court can correct that if they become convinced that those things dominated the jury. Most of the time jurors try to arrive at a correct decision.

The cumulative effect of punitive damages in multiple cases is a real problem. Because of the cap in Texas it is not a serious problem in that state. Punitive damages are supposed to teach a wrong doer a lessen, like a fine in criminal cases, but they are not supposed to destroy the defendant. When a corporation faces thousands of suits nationwide, it has a real problem. Remember, however, MRK is accused of suppressing information that might have lead a lot of people to forgo taking Vioxx or to limit the amount of time they took it. If that is correct and many people died because of the suppression, Merck is a mass murderer. Think of your dearest relative, spouse or friend. What if he or she died because Merck suppressed the truth about the drug. How would you feel. Would you care that Merck stock won't revive any time soon? Would you care whether the company went bankrupt? I doubt it.

Joe

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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8658 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 2:21 AM
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Joe:

Merck is not a real person, it is a legal entity created for the purpose of stimulating capital formation. The people making the decisions within Merck are real persons. If these people committed a crime, I have no problem with seeing them punished. As a matter of fact, I wish corporate officers could hide less than they do today. But by destroying Merck you are not punishing the culprits, you are punishing the shareholders. It should be very clear that shareholders have very little decision power in "their" company. I hope you are not implying that the individual Merck shareholders are mass murderers who deserve to be punished.

What I'm saying is that the way these cases are handled is not very logical.

Denny Schlesinger


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Author: zoningfool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8659 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 7:15 AM
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Thanks for your perspective on this, Joe. I just e-mailed Richard to nominate your post for POD (the first time I ever did that, btw.)

zf

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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8660 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 8:13 AM
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But by destroying Merck you are not punishing the culprits, you are punishing the shareholders.

In other words, if a company does bad things, you should not punish the owners of the company. A strange credo, I think.

The owners of the company are the only people empowered to determine the managers of the company. It seems you are advocating that corporate managers should be individually liable for corporate malfeasance, which is exactly what the corporate shield is designed to protect. Corporations aren't formed just "for the purpose of stimulating capital formation", heck, I can do that myself. "I have a great idea. Give me $10,000 and I'll split everything with you." No corporation needed, you see? The corporation provides a legal shield against personal assumption of corporate debt - and, in most cases, criminal malfeasance committed in pursuit of the corporate profit.

It appears to me, if you followed the case, that these jurors - in an overwhelmingly conservative district - found the likelihood of corporate malfeasance in the attempt to surpress the CV dangers of Vioxx. They may be wrong, but they were presented hundreds of e-mails and memoes which indicated that the company knew of the dangers and hid them, obsfucated those contraindications from the medical community as much as possible, and calculated the additional profit to be made by such manuvers.

This is not a good season to be putting documentary evidence in front of juries, no matter what political persuasion, of malfeasance by corporate officials.

And yes, the shareholders of the company are those who are ultimately responsible, although the corporate shield prevents them from actually serving jail time, should more dire accusations be made (in all cases, not just this one.)
 


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Author: TMFMillerTime Big red star, 1000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8661 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 8:15 AM
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I may have flipped my lid but I'm under the impression that non-economic damagea (pain and suffering) are capped... punitive damages are not capped. If they were capped, it won't be worth MRK's time to bother even defending.

you, being an appellate lawyer of 45 years experience, are surely right and I'd defer to your expertise... but I think I would recheck that item. I'll try to check it too

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Author: TMFMillerTime Big red star, 1000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8662 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 8:19 AM
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In Texas, punitive damages are capped at twice the amount of economic damages -- lost pay -- and up to $750,000 on top of non-economic damages, which are composed of mental anguish and loss of companionship.

answered my own question... shoulda looked before I typed

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Author: TMFMillerTime Big red star, 1000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8663 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 8:28 AM
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if a company does bad things, you should not punish the owners of the company. A strange credo, I think.

responsible parties should be punished. Thge coporate structure is designed to allow for marginal ownership without liability, It is not designed to protect crappy or criminal corporate officers. That's why Mr Fastow and Mr Ebbers have a new home. Marginal shareholders are simply an uninvolved, out of the loop, supplier of capital (in the primary markets anyway) and to suggest that they are decision making owners of business is pretty silly and why corporate structure exists in the first place. Corp officers should be liabile... esp when Delaware law insulates them from having to be attentive to MAJORITY shareholder votes....



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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8664 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 9:10 AM
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Thge coporate structure is designed to allow for marginal ownership without liability, It is not designed to protect crappy or criminal corporate officers. That's why Mr Fastow and Mr Ebbers have a new home. Marginal shareholders are simply an uninvolved, out of the loop, supplier of capital (in the primary markets anyway) and to suggest that they are decision making owners of business is pretty silly and why corporate structure exists in the first place.

That sounds much more like a personal opinion than a legal one.

Since corporations have been sued - and economic judgments held against - since the beginnings of "corporations", it would appear that "the owners", uninvolved or not, primary or not, are those who suffer economic loss when such things happen. Can you point to lots of examples where a corporate officer is made to pay economic damages in such a suit, but the corporation is not?

I admit I'm not a lawyer, but it seems that hundreds of years of precedent for corporations losing money from the corporate treasury, and therefore from all owners big and small, rather trumps your assertion that such a thought is "silly."

That there are varying degrees of punishment, (i.e. your characterization of Fastow and Ebbers) is hardly a surprise. I'm presuming the myriad e-mails and memoes are from a variety of people in the management of Merck, and therefore this was viewed as a corporate, rather than individual responsibility. However I don't know that for sure, but I do know that the owners of a company are among the ones who suffer when the company fails - or betrays the public trust.

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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8667 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 11:15 AM
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In other words, if a company does bad things, you should not punish the owners of the company. A strange credo, I think.
Goofyhoofy


That is exactly the intent of limited liability, to limit the liability. It was deemed necessary to promote capital formation. Would you invest in a company run by third parties if your whole net worth was put at risk? I know I wouldn't and there would likely be no stock market as we know it.

Corporations aren't formed just "for the purpose of stimulating capital formation", heck, I can do that myself. "I have a great idea. Give me $10,000 and I'll split everything with you." No corporation needed, you see?

I see that you would be willing to risk your whole net worth but I doubt the bulk of investors would be so foolish.

It appears to me, if you followed the case, that these jurors - in an overwhelmingly conservative district - found the likelihood of corporate malfeasance in the attempt to surpress the CV dangers of Vioxx. They may be wrong, but they were presented hundreds of e-mails and memoes which indicated that the company knew of the dangers and hid them, obsfucated those contraindications from the medical community as much as possible, and calculated the additional profit to be made by such manuvers.

Would you kindly point out where in my post I said the jurors got the facts wrong?

And yes, the shareholders of the company are those who are ultimately responsible, although the corporate shield prevents them from actually serving jail time, should more dire accusations be made (in all cases, not just this one.)

Now you are addressing the issue I raised.

Leaving the question of ethics aside because it only clouds the issue, the fact that a jury can bankrupt a drug company means that drug companies are more risky than your run of the mill company. This, in turn, also means that most investors would expect market beating returns before they invest in a drug company. This, in turn, raises the cost of capital for drug companies.

Here is the irony, drug companies make products to lengthen lives and improve lifestyles but because drugs are risky their price is high and people complain that high prices are not fair. The net result of this pressure has been to force drug companies to give a lot of drugs away. But the piper has to be paid so someone is bearing an extra cost. Just another form of transfer payments from the haves to the have nots or to those who complain the loudest.

Just last week a cholesterol lowering drug that my doctor recommends jumped 20% in price. Maybe I should join the whiners and ask Merck to give it to me for free.

Liberal or conservative, the Texas jury is helping the trend towards higher medical costs. This is a perfect example of the saying: "The path to hell is paved with good intentions."

I'm going to ask again, "Is this the best way to deal with this kind of situation?" My reply is that a method that does not raise the cost of drugs is preferable to the current method whose outcome is to eradicate the "wrongdoer." What we have today is a corporate death sentence. Surely there are better deterrents out there, ones that focus not on the providers of capital but on the executors of company policy, i.e. the company executives.

Denny Schlesinger

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Author: SpockV One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8670 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 1:17 PM
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Great commentary on legal aspects. As an M.D., I'll to add a medical perspective.

Ischemic heart disease and stroke are multi-factorial diseases. The lifestyle and genetics are the most important factors in assessing risk. Vioxx at best is a contributing factor.

I don't know any specifics about the plaintiff's medical history but I can nearly guarantee that if he had an ischemic event then he also had some of these other conditions: smoking history, hypertension, high cholesterol, family history. So the situation here is one of a medication adding risk but not one of a medication causing a condition outright (such as with thalidomide and birth defects or fen-phen and heart valve damage.)

Nonetheless, I'm sure that MRK employed some impressive expert witnesses to make these points and the jury was still unmoved. But it defies medical (I can't comment on legal) common sense to believe that MRK will be held liable to this level in all the pending cases. Plenty of these other "victims" were smokers, etc. I'm sure that MRK will have plenty of ammunition to defeat or reduce awards in many, many cases.

Personally, given the choice between smoking and taking Vioxx, I'd take my chances with Vioxx seven days a week.

One other interesting note, MRK made a Faustian bargain with respect to marketing. Vioxx and Celebrex have been sold to consumers as "miracle pain cures" through their advertising campaigns. The truth is that there is absolutely no evidence that these drugs relieve pain any better than ibuprofen or others in the class. Rather, the COX-2 inhibitors were designed to limit gastritis and other intestinal side effects in chronic-use cases. However, the result of the marketing was that entirely too many people, who didn't really need it, took the drug. As a result the small but statistically significant increase in ischemic event risk was amplified. And so the devil has come calling.

Anyhow, I put in order in for MRK shares today.

sv

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Author: zoningfool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8671 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 1:24 PM
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Hey rog12 (Joe)--Congrats on getting POD--------------------------------->

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Author: zoningfool Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8672 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 2:01 PM
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A thought about getting into Merck, which may or may not be OT to the BMW method--you might want to factor a sentiment indicator like the put/call ratio into your decision:

http://www.schaeffersresearch.com/streetools/indicators/equity_oipcratio.aspx

As you could see there is a fairly strong negative correlation between the ratio and stock price.

fwiw,
zf

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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8673 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 3:22 PM
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That is exactly the intent of limited liability, to limit the liability.

You folks seem to be confusing the point. "Limiting liability" does not mean "you can't lose money." Indeed, it means that if the corporation loses more money than it has (or can borrow or secure elsewhere) that suitors cannot come after you individually.

Your investment in Merck may be lost. It may be lost in total, or in part, or you may make money, or if you are lucky you may make a whole bunch of money.

Would you kindly point out where in my post I said the jurors got the facts wrong?

I never said that you did. Indeed, I went out of my way to say the opposite, that the jurors were presented with evidence of potential malfeasance, and that they may have gotten the facts wrong - or not. I don't know. I wasn't there.

Leaving the question of ethics aside because it only clouds the issue, the fact that a jury can bankrupt a drug company means that drug companies are more risky than your run of the mill company.

I would agree that drug companies are "more risky", but that is largely because they produce "in the mouth" products which are inherently more risky themselves. If you are a pharma investor you should understand this going in. Every business has risks. If GE were turning out substandard aircraft engines which caused airplanes to crash - and they were hiding that fact - they would be sued to within an inch of their life. Indeed, they have produced engines which have crashed. It is the apparent malfeasance that produced the large punitive award here, not the fact that the drug might be risky. Ford got tagged because they KNEW the Pinto gas tank was unsafe, not because they made an honest mistake and corrected it. You see?

I'm going to ask again, "Is this the best way to deal with this kind of situation?" My reply is that a method that does not raise the cost of drugs is preferable to the current method whose outcome is to eradicate the "wrongdoer." What we have today is a corporate death sentence.

Nonsense. You have a corporate death sentence for corporations which are malignant. Virtually every corporation on the planet has been sued at one time or another. Are they all dead? Of course not. Is Enron? Is the accounting firm Andersen? Is WorldCom? Sure. I think they should be; they prepetrated fraud on a massive scale and caused economic harm to millions of people. You think this was the work of one guy in a corner office?

In this case we have at least some documentary evidence that Merck made a cold calculation of "known risk" against "next year's profits." Somebody said "I'm glad they took the stand against the FDA" but based on results, I'd say that bit of swaggering bravado was misplaced, particularly since Merck itself later decided to take the drug off the market anyway. You can't have it both ways. Either they were wrong to push forward with a drug having few benefits and known risks, or they were incredibly stupid to withdraw it from the market at all. Which is it?

Here is the irony, drug companies make products to lengthen lives and improve lifestyles but because drugs are risky their price is high and people complain that high prices are not fair.

I agree this is a conundrum. I also note that the marketing costs for these companies exceed the R&D costs and the insurance costs, so perhaps more restraint in the "miracle cure" department and a bit more in the "truth" detail would be in order. I think it would help tamp down such "excessive" jury awards.
 


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Author: MrCheeryO Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8674 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 3:51 PM
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Enjoyed the post but truly bizarre, imo, that an appeal to "stick to the facts" is worthy of 92 recs and Post of the Day, so far. No criticism intended, and no doubt in appreciation of the effort made.

But perhaps not surprising in a time when casual disregard of facts in the public discourse is not only permmitted, but expected. Maybe I am imagining things but that complete and utter disregard for anything resembling the truth has become way more popular the last few years or so. Can't imagine why.

Don't practise in this area, but the Texas statute seems pretty clear. Keeping in mind that all cases will not be brought in Texas.

Anyway, I do find it odd that Bush and friends in Congress think people smart and wise enough to sit on one of those famous Texas capital murder death penalty juries, but those same Texans are considered too easily duped by tricky lawyers to allow them to decide damages in a civil case. All part of the know-nothing attack on the rule of law, the courts and the independence of the judiciary that is so popular recently.

Maybe shows you where certain folks priorities are? :) What an age of enlightenment we live in. "Stick to the facts" the few that can be determined) gets big applause.
--------------------------------------------------
§ 41.008. LIMITATION ON AMOUNT OF RECOVERY. (a) In an
action in which a claimant seeks recovery of damages, the trier of
fact shall determine the amount of economic damages separately from
the amount of other compensatory damages.
(b) Exemplary damages awarded against a defendant may not
exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an amount equal to any noneconomic damages
found by the jury, not to exceed $750,000; or
(2) $200,000.
(c) This section does not apply to a cause of action against
a defendant from whom a plaintiff seeks recovery of exemplary
damages based on conduct described as a felony in the following
sections of the Penal Code if, except for Sections 49.07 and 49.08,
the conduct was committed knowingly or intentionally:
(1) Section 19.02 (murder);
(2) Section 19.03 (capital murder);
(3) Section 20.04 (aggravated kidnapping);
(4) Section 22.02 (aggravated assault);
(5) Section 22.011 (sexual assault);
(6) Section 22.021 (aggravated sexual assault);
(7) Section 22.04 (injury to a child, elderly
individual, or disabled individual, but not if the conduct occurred
while providing health care as defined by Section 74.001);
(8) Section 32.21 (forgery);
(9) Section 32.43 (commercial bribery);
(10) Section 32.45 (misapplication of fiduciary
property or property of financial institution);
(11) Section 32.46 (securing execution of document by
deception);
(12) Section 32.47 (fraudulent destruction, removal,
or concealment of writing);
(13) Chapter 31 (theft) the punishment level for which
is a felony of the third degree or higher;
(14) Section 49.07 (intoxication assault); or
(15) Section 49.08 (intoxication manslaughter).
(d) In this section, 'intentionally' and 'knowingly' have
the same meanings assigned those terms in Sections 6.03(a) and (b),
Penal Code.
(e) The provisions of this section may not be made known to a
jury by any means, including voir dire, introduction into evidence,
argument, or instruction.
(f) This section does not apply to a cause of action for
damages arising from the manufacture of methamphetamine as
described by Chapter 99.

Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, eff.
Sept. 2, 1987. Renumbered from V.T.C.A., Civil Practice & Remedies
Code § 41.007 and amended by Acts 1995, 74th Leg., ch. 19, §
1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 643,
§ 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 204, §
13.06, eff. Sept. 1, 2003.




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Author: nuggetmonkey One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8675 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 4:09 PM
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Hey rog12 (Joe)--Congrats on getting POD--------------------------------->

That goes for mklein9 and yttire, too.

http://www.fool.com/community/pod/2005/050818.htm
http://www.fool.com/community/pod/2005/050819.htm


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Author: NoGoodReason Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8676 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 4:51 PM
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I admit I'm not a lawyer, but it seems that hundreds of years of precedent for corporations losing money from the corporate treasury, and therefore from all owners big and small, rather trumps your assertion that such a thought is "silly."

No. It just means the law is not what it should be. Since the laws are written by the rich and powerful, this should come as no surprise. It is absurd that those who made the decisions are insulated from responsibility while retaining their executive compensation, while the shareholders with minimal power and no decisionmaking responsibility are hung out to dry.

-NGR


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Author: Vol Three stars, 500 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8677 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 6:03 PM
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Joe,

How much of the award goes to the atty? 33% to 40% is usual. Is there a cap on this?

If this stands I guess this lawyer will cut loose with 80-100 million. Oops maybe a mere 8-10 million b/c punitive cap in Texas. Not to mention 1st in line for class action suits. Nothing against lawyers - I have several as friends and family. Just seems like too much for any one person to get.

Why not use the hundreds of millions for healthcare - like the tobacco company settlements. Except many states spent that money to balance their budgets, i.e. more spending on things other than healthcare.

BTW I have seen how a jury is picked before a trial. Every one I know, me included tries to get out of jury duty. I am in a small partnership - if I can't go to work there may not be anyone there to pick up the slack. You don't call in sick. Many small business people are like this. I saw the attorneys weed out anyone and every one who had any background that would make them knowledgable on the subject of the trial. That way they were less "biased" ie more gullible to pseudo-facts. The result is a jury of people more likely to be uneducated and non-professional. This is not my opinion - I heard the lawyers tell me this.

The whole system seems screwed up.

vol

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Author: MrCheeryO Big funky green star, 20000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8678 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 6:29 PM
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The whole system seems screwed up.

That may be true, hopefully an opinion based on something other than a few gaudy headlines, a few anecdotes and a few speeches by politicians who have an interest, as always. How come we never see much data? Evidence? Seems like if the problem were as serious as some claim, it would be easy to dig up. Be well documented.

To even come close to making some kind of rational decision on Merck, buy sell or hold, you would need a minimum of

--good familiarity with the expert evidence adduced at trial

--the Texas statutes that are relevant, specifically on damages and procedure

--the Texas case law related to and interpreting those statutes

--a knowledge of the like law in most of the other 50 states

--a knowledge of the recent federal class action "reforms"

--some idea of what Congress might do if a huge damages award was upheld by the courts. The gun manufacturers liability bill, for example, will not only prevent future lawsuits but will result in the immediate dismissal of all existing lawsuits. Alot tougher to do on pharma but not beyond the pale with these folks, more interested in their campaign contributors than basic principles of fundamental justice and fairness.

If people want to take a WAG on all that, more power to them. Probably not much different from the usual considered investments based on chat board advice and someone willing to use the word "liberal". Oh yeah, those evildoing Texas liberals. All fifteen of them. Twelve of which made it on to the Merck jury, apparently.



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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8679 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 6:38 PM
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not beyond the pale with these folks, more interested in their campaign contributors than basic principles of fundamental justice and fairness.

Justice and fairness to whom? I spent several posts saying that I don't think the punitive damages are fair to individual Merck shareholders. A bill of limitations would be fair and just for us, individual investors.

In the spirit of the thread, please stick to the facts. :)

Denny Schlesinger


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Author: hildy Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8680 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 6:44 PM
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If people want to take a WAG on all that, more power to them. Probably not much different from the usual considered investments based on chat board advice and someone willing to use the word "liberal". Oh yeah, those evildoing Texas liberals. All fifteen of them. Twelve of which made it on to the Merck jury, apparently.



LOL...! You made my day MrCheeryO and my rec too!

I tend to think this is BAU (Business as Usual) here in the Good Ol' USA!


MrCheeryO is already one of your Favorite Fools


Best regards;

~hildy ;o)



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Author: whyohwhyoh Big red star, 1000 posts Old School Fool CAPS All Star Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8681 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 7:44 PM
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Oh yeah, those evildoing Texas liberals. All fifteen of them. Twelve of which made it on to the Merck jury, apparently.

I believe that one is not speaking of the jury members being "liberal", but rather that the rules in this court are "liberal". Such as allowing more questionable evidence, or "off topic" evidence than other courts.

From my understanding in New Jersey, for example, much of the evidence used in this Texas court will not be allowed.

Supposedly the first trial was chosen to take place in this Texas court, due to their more "liberal" court rules, allowing a better chance at a first round win; however, they know it will most likely be overruled on appeal. It doesn't matter, they want the momentum going into NJ.

--
whyohwhyoh


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Author: pat1729 Big red star, 1000 posts Old School Fool CAPS All Star Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8682 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 8:10 PM
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The facts? The facts are that the jury was full of morons who did not even understand what they were hearing:

http://boards.fool.com/Message.asp?mid=22924601

http://matthewholt.typepad.com/the_health_care_blog/2005/08/pharma_wsj_on_h.html

Don't miss the bit about Oprah...

Ah, the majesty of our justice system in action.

- Pat


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Author: jakalant Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8687 of 41614
Subject: Re: MRK-stick to the facts Date: 8/22/2005 9:52 PM
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The facts are that the jury was full of morons who did not even understand what they were hearing

Well they live in Texas. In Tom Delay's district. Look who they voted for for congress. Look who they earlier voted for for govenor. Look who they voted for for President? What did you expect?

Jack



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Author: jakalant Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8692 of 41614
Subject: Re: MRK-stick to the facts Date: 8/23/2005 11:38 AM
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More seriously

Also emailed to SpockV:

I agree with your analysis. I beleive another thing that aparently MRK did wrong was to hide from the public information about the increased risk of CV problems

Can you speak to this?:
There was apparently a dispute related to the fact that while the drug may cause ischemia from thrombus it is not implicated in the developement of arrythmia, which is supposedly the cause of death in the Texas case. Am I correct in stating that, theoretically, rapidly metabolized micro thrombi can cause ischemia which could then cause arrythmia?

Jack

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Author: SpockV One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8695 of 41614
Subject: Re: MRK-stick to the facts Date: 8/23/2005 3:22 PM
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Jack,

The truth is that every form of death leads to arrythmia. The heart stops beating because it lacks oxygen suppy for some reason - hemorrhage, a thrombus blocking an artery, septic shock, etc. Given that this patient died of an arrhythmia, I should add that there are certain inherent arrhythmias caused usually by "electrical problems". Anyhow, lack of oxygen to the heart causes cellular changes which cause the electrical pulse, or sinus, to cease to operate properly. Hence, one sees ventricular fibrillation or something called pulseless electrical activity or the dread flatline. If you are CPR qualifed, the point of chest compressions is to "buy time" by supplying oxygen until you can defibrillate the heart.

So how does this apply to this case. Again I don't know specifics about the patient's history. We know that Vioxx slightly increases risk for thrombotic events. But so does all the plaque build up from cholesterol, systemic infections (i.e. pneumonia can increase risk for ischemic events from thrombus.),etc. Did the guy have a thrombotic event that caused his arrhythmia? I just don't know. I suspect that the jury failed to understand that there are plenty of other plausible reasons for having arrhythmias - that is why patient history is so important. I will tell you that if he did have an ischemic event ("heart attack") then all Vioxx probably did was make what was inevitable, happen a little earlier.

Because of the data I won't give Vioxx to patients with multiple coronary artery disease risk factors. But for folks with average risk, I prescribe it and don't lose any sleep. Hope that answers your question.

sv

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Author: SpockV One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8700 of 41614
Subject: Re: MRK-stick to the facts Date: 8/23/2005 5:12 PM
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Lest I be to cavalier in my assessment and to give a balanced counter opinion to my own. Here is a link to an editorial from the NEJM:

http://content.nejm.org/cgi/content/full/351/17/1707

I should state that I agree that Merck was negligent in its failure to fully disclose and study the risks uncovered in various studies. And they will be held liable for damages accordingly. But here is the problem with individual cases.

Only by happenstance, in a trial involving 2600 patients with colon polyps who could not have been enrolled if they had had any cardiovascular disease, was it discovered that 3.5 percent of the patients assigned to rofecoxib had myocardial infarction or stroke, as compared with 1.9 percent of the patients assigned to placebo (P<0.001), necessitating premature cessation of the trial and the decision to discontinue treatment with rofecoxib.

Two things to note from this statement:

1. roughly double the number of patients had thrombotic events 3.5 versus 1.9%. So the relative risk from Vioxx versus placebo is double.
2. But still there was only an increased incidence of 1.6% (3.5 versus 1.9). This is called absolute risk.

So here is where the saying "there are lies, damn lies, and statistics" comes into play.

If juries want to hear that the risk was doubled, then they will award accordingly. But in reality the increased number of incidences was small. How do you determine who to compensate? Medically speaking, it is going to be impossible to pick who that extra 1.6% actually was. Probably everyone gets something. Still the idea that Merck owes every plaintiff $230m is preposterous imo.

Every medication has side effects and risks. Any decision to take a medication is a trade off between risks and benefits. Merck's fault was not fully disclosing risks in a timely fashion.
Remember though that the FDA bought off on the drug, knowing all the same data and thus they bear some culpability. Also, Vioxx is still available! Finally, this is nowhere near as damning as the actions of the tobacco companies who colluded, covered-up, and actually made their product more addictive.

sv








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Author: jakalant Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8703 of 41614
Subject: Re: MRK-stick to the facts Date: 8/23/2005 9:21 PM
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Sorry if this is so OT here.


Thanks for the answers. Much appreciated. I personally think the idea of $230 M to one patient is absurd, especially considering the multifactorial causes of cardiovascular disease. It is true though, that were the risks publicized, he, because of his increased risk for CV disease (is this true), might be precisely the person who would not be prescribed Vioxx, as your description of you practice describes.

And I totally agree with your statement about the tobacco companies. Both of my parents died from tobacco related illnesses. Nobody held a gun to their heads to smoke but I myself was addicted for many years, trying unsucessfully to quit for many years before I actually did.

I have spoken to people who were around whatever govt agencies were involved with tobacco regulation in the 50's who told me the carcinogenic nature of nicotine was <b<known as early as 1956, but the tobacco lobby was able to supress it's coming to the public square for another 6 years.

Years ago I grew up in a rough place. Nobody I knew who was trying to make a living selling narcotics was hiding the fact that you could
become addicted to narcotics and that that addiction might become a big problem for the addict, medically and/or socially.

As opposed to those who knew but did nothing about tobacco in the 50's.


Jack


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Author: jfrich One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8715 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 2:04 PM
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Still the idea that Merck owes every plaintiff $230m is preposterous imo.

Or that it owes this plaintiff $230m. One person is benefiting from the punitive punishment as if no other jury is going to award punitive damages. (Yes I know the award will be reduced.) A similar case occured when a smoker was awarded $8b. Why should that one individual get an award that was clearly calculated by considering the sum total of pain and suffering?

http://content.nejm.org/cgi/content/full/351/17/1707

Thanks for the link. Good idea to do Congressional review of FDA and Merck communications. Obviously the FDA concurred with Merck about usefulness of Vioxx but Merck seems to be bearing some of the FDA's liability since FDA is not suable.

The truth is that every form of death leads to arrythmia.

I think this is the source of the comments about the jury. I understand that opportunities to cross examine the expert witnesses was limited possibly preventing adequate exposure of this issue, but skipping legal technicalities, there seems to be so much shadow of a doubt that it doesn't seem that this particular plaintiff should have gotten anything. One begins to suspect that the jury felt it was their duty to punish Merck, as opposed to considering the merits of this specific case.



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Author: 4924 Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8718 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 2:41 PM
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Dear Joe: As a lawyer please inform me: Is there no limitation to the times Merck can be made to pay for punitive damage? Punishing once seems to be reasonably punitive, as is double jeopardy in a criminal case. Doing it 50,000 times is a travesty. But if legal, would it likewise be legal for a wise judge to direct that these funds be used for a nobler cause, such as starting a research fund into the development of "orphan drugs"? Thank you, Ed Martinez

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Author: foolfriend100 Old School Fool CAPS All Star Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8720 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 3:36 PM
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Kudos on the thoughtful analysis.
I live in Texas and have been following recent state tort reform measures. I concur on how the Texas tort cap laws will limit the damages.

Most judges in Texas are elected. While some counties have pro-plaintiff trial judges, the appellate judges, both at the Texas Supreme Court and the regional level are usually pro-business, pro-tort reform. I'd be very surprised if the Vioxx verdict stood either as to damages or admissibility of some of the contested pro-plaintiff evidence.

Since most of the market is not familiar with Texas tort caps it appears the market is punishing Merck's stock on the basis of what may ultimately be an empty damage award. This may provide buying opportunities for those with a more realistic assessment of the final cost of Vioxx suits, rather than relying on jury awards that will ultimately be capped or thrown out on appeal.

Best Regards,
EH

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Author: mainelegal Two stars, 250 posts Old School Fool CAPS All Star Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8722 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 5:07 PM
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"As a lawyer please inform me: Is there no limitation to the times Merck can be made to pay for punitive damage? Punishing once seems to be reasonably punitive, as is double jeopardy in a criminal case. Doing it 50,000 times is a travesty. But if legal, would it likewise be legal for a wise judge to direct that these funds be used for a nobler cause, such as starting a research fund into the development of "orphan drugs"? Thank you, Ed Martinez "

Merck has the choice of defending one at a time or en masse. The funds belong to the claimant, who acts as a surrogate enforcer for the public interest. In Maine, some judges believe that the law requires that the jury also agree the punishment is necessary to avoid a repetition of misconduct.

I wonder about some of the sentiment on this board to blame lawyers, plaintiffs, stupid laws, stupid juries and liberals for this liability result. If Merck had a substantial role in killing this person (and as many as 60,000 others due to greed or some other malicious motive or purpose) - a conclusion that seemed to be drawn by this jury - this is a wrongful act of stupendous proportions for which the assets and income of the corporation are justly held responsible for compensation.

Still, Merck's revenues are so large that it will be able to find a way to pay off these liabilities and survive without permanent damage. The Texas case probably seemed like a good place to try some lines of defense because of the liability cap.


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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8723 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 7:12 PM
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I wonder about some of the sentiment on this board to blame lawyers, plaintiffs, stupid laws, stupid juries and liberals for this liability result. If Merck had a substantial role in killing this person (and as many as 60,000 others due to greed or some other malicious motive or purpose) - a conclusion that seemed to be drawn by this jury - this is a wrongful act of stupendous proportions for which the assets and income of the corporation are justly held responsible for compensation.
mainelegal


I can just see it, company employees sitting around the cafeteria calculating how many people they were planning on killing with each drug. Vioxx got out of hand, they only wanted to kill 1,000 but something went very wrong. :(

Give me a break! While it is perfectly possible that Merck underestimated the possible side effects of Vioxx, from there to "malicious motive or purpose" and to "a wrongful act of stupendous proportions" is just plain ludicrous.

Evaluating decisions with the benefit of hindsight is easy but put yourself on the firing line and then tell me it is easy. Look at how difficult it is to just pick stocks for your portfolio and that is not a question of life and death. Dr. William Thomas of Eden Alternative is fond of saying that the only safe place for humans is in a pine box six feet under. While you are alive you run risks. Criminalizing an honest mistake is an error of wast proportions and all it does, besides harm to the victims directly, is to create extra costs for the rest of us.

While there is no good alternative to trial by jury, that does not mean that juries should be allowed to set punishment of any magnitude they feel like. When I asked a few posts back in what way these jurors were the peers of Merck in part the question asked what these people know about running a business like a drug company. It seems to me that they are more inclined to take revenge than to punish. Figure it out yourself, 250 million for each of the 60,000 dead. Or even 250 million for each of the 4200 plaintiffs. Ludicrous.

Let's suppose your aim is to punish Merck for selling Vioxx, how about a fine twice the size of Merck's profits from Vioxx? Does that not sound more fair? The way the legal system is set up now, juries can destroy corporations, as I said in a prior post, they can issue a corporate death sentence. Should not that kind of decision have been made at the legislative level when the law was written, just like it is done for criminal cases?

Denny Schlesinger

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Author: SpockV One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8724 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 7:25 PM
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I understand that opportunities to cross examine the expert witnesses was limited possibly preventing adequate exposure of this issue, but skipping legal technicalities, there seems to be so much shadow of a doubt that it doesn't seem that this particular plaintiff should have gotten anything. One begins to suspect that the jury felt it was their duty to punish Merck, as opposed to considering the merits of this specific case.

I posted on the PA board and stronger opinion about the "shadow of a doubt" issue. The plaintiff's attorney closing argument said something to the effect that "51% confidence" in Vioxx being the causative factor in this death was sufficient. The problem is that no reputable doctor would bet his/her lunch, much less $230m, that he/she was greater than "51%" sure of the connection.

I do think that you can make a reasonable case that Merck owes even if this plaintiff something. It's actions prevented the plaintiff from making an informed consent to the treatment. But that is not worth $230m.

I think the ideal case to take on Merck would be a younger person without significant risk factors who, unexplainably, has a heart attack while taking Vioxx. There are probably some of these out there but, even here, you couldn't say that Vioxx was certainly responsible.

I think this is merely the opening salvo in the battle. We'll see what Merck's next move is.

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Author: cjhash Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8725 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 8:46 PM
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The facts are

Go to any town and watch the jury selection process. NO ONE who works wants to serve on a jury despite your suggestion to the opposite. The doctors, lawyers, businessmen, anyone with any degree of pull won't even appear for the process because they will have their lawyer (or they themselves) call the judge and get themselves excused before the process even begins. I know because that's how I handled it when I was called, a process suggested to me by several others who had similarly gotten off. As a result, it is difficult, if not impossible to get jury of your peers (at least in terms of a decent level of sophistication). One of the jurors even said they didn't understand the science AND THEREFORE THEY IGNORED IT.

I don't know whether Merck was right or wrong but to suggest that juries (as they are chosen and composed in this day and age) are intelligent enough to consider the science of the issue is ridiculous and it is the science that represents Merck's side of the argument (ignored, as demonstrated above).

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Author: Liqudatr One star, 50 posts Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8726 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 9:30 PM
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<Go to any town and watch the jury selection process. NO ONE who works wants to serve on a jury despite your suggestion to the opposite. The doctors, lawyers, businessmen, anyone with any degree of pull won't even appear for the process because they will have their lawyer (or they themselves) call the judge and get themselves excused before the process even begins. I know because that's how I handled it when I was called, a process suggested to me by several others who had similarly gotten off. As a result, it is difficult, if not impossible to get jury of your peers (at least in terms of a decent level of sophistication). One of the jurors even said they didn't understand the science AND THEREFORE THEY IGNORED IT.>

It is worse than this. Lawyers for plaintiffs such as this do not want an educated professional on the jury. They dont want anyone taught to think critically or with experience in managing people or skill in molding opinions. They want folks who are easily influenced. They want people who watch Oprah and empathize. So, if you are an educated professional, or anyone who will be able to understand the FACTS presented, you can be assured that you will not be picked for the jury, even if you consider it your "duty" to show up for the jury call.

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Author: wysockiman Big gold star, 5000 posts Home Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8729 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 11:31 PM
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Denny posted, in pertinent part:

Let's suppose your aim is to punish Merck for selling Vioxx, how about a fine twice the size of Merck's profits from Vioxx? Does that not sound more fair? The way the legal system is set up now, juries can destroy corporations, as I said in a prior post, they can issue a corporate death sentence. Should not that kind of decision have been made at the legislative level when the law was written, just like it is done for criminal cases?

Most states have either legislatively-imposed caps or judicially-imposed caps on punitive damages. CA, IL and TX are examples of one or the other. And some states have caps on pain and suffering. CA and TX are but two examples.

It is unlikely if not simply impossible for a jury to destroy a corporation.

David

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Author: wysockiman Big gold star, 5000 posts Home Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8730 of 41614
Subject: Re: MRK-stick to the facts Date: 8/25/2005 11:34 PM
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One of the jurors even said they didn't understand the science AND THEREFORE THEY IGNORED IT.

They ignored it because they were incensed about MRK's knowledge of the heart threat in advance and because MRK's defense team did a lousy job of communicating their defense: no causation. Attorneys and their consultants know that they must know their opponent's attorney and must KNOW and COMMUNICATE with the jury.

David


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Author: davidn77007 Two stars, 250 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8731 of 41614
Subject: Re: MRK-stick to the facts Date: 8/26/2005 12:32 AM
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Most states have either legislatively-imposed caps or judicially-imposed caps on punitive damages. CA, IL and TX are examples of one or the other. And some states have caps on pain and suffering. CA and TX are but two examples.

It is unlikely if not simply impossible for a jury to destroy a corporation.


By most states, do you mean all states? Doesn't it just take one state to hand out a billion dollar verdict? I didn't think Illinois for example had such caps.

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Author: wysockiman Big gold star, 5000 posts Home Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8733 of 41614
Subject: Re: MRK-stick to the facts Date: 8/26/2005 10:10 AM
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By most states, do you mean all states? Doesn't it just take one state to hand out a billion dollar verdict? I didn't think Illinois for example had such caps.

IL judicially imposes caps. It did so in a recent class action smoking case via its supreme court.

BTW, I found this article on the MRK litigation in today's Business section. The federal judge is managing the cases in an expeditious and economical fashion it appears.

NEW ORLEANS — The tally of lawsuits against Merck & Co. in state and federal court over its painkiller Vioxx is nearly 5,000 and growing, lawyers said in federal court here Thursday, less than a week after the drug maker suffered a stinging defeat in a state court in Texas.

The implications of the loss in the first of the cases to be tried against Merck are still playing out. But a routine monthly meeting here of lawyers and U.S. District Judge Eldon Fallon made it clear they expected the number of cases against Merck to grow.

<snip>

Fallon is asking lawyers on both sides of the matter to pick representative cases from four categories of complainants including, potentially, those who suffered strokes and short-term users of Vioxx. The first of the plaintiffs has been chosen: a heart-attack victim from Florida, Richard Irvin Jr., who died in May 2001, one month after he began taking Vioxx for back pain.

The Irvin case starts here Nov. 28 and will be followed by trials Feb. 13, March 13, and April 10, Fallon said. <snip>

Analysts have criticized Merck's strategy in the Texas case, in which a jury awarded $253.4 million in damages to the widow of Bob Ernst, who died in 2001 of irregular heartbeat, or arrhythmia, after taking Vioxx for eight months. Observers said Merck's case was potentially strong — no evidence has so far linked Vioxx to arrhythmia — but that the company relied too heavily on scientific arguments, neglecting human ones.

Here is the link to the article:

http://www.latimes.com/business/la-fi-vioxx26aug26,1,7859678.story?coll=la-headlines-business

Our local ABC-TV affiliate (KABC) reported this morning that MRK is considering settlement with all cases where the victims used Vioxx for 18 months or more and did not have any history of heart problems. Excellent move, if true.

David

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Author: freethinkerkeywe Big gold star, 5000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8759 of 41614
Subject: Re: MRK-stick to the facts Date: 8/28/2005 9:35 AM
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Go to any town and watch the jury selection process. NO ONE who works wants to serve on a jury despite your suggestion to the opposite. The doctors, lawyers, businessmen, anyone with any degree of pull won't even appear for the process because they will have their lawyer (or they themselves) call the judge and get themselves excused before the process even begins. I know because that's how I handled it when I was called, a process suggested to me by several others who had similarly gotten off. As a result, it is difficult, if not impossible to get jury of your peers (at least in terms of a decent level of sophistication). One of the jurors even said they didn't understand the science AND THEREFORE THEY IGNORED IT.

This was the last post I could take about jurists lacking sophistication. So, not just to you, but to all the people who condone "making excuses" to get off jury duty, I've got something to get off my chest:

There is simply no honor in lying to get off jury duty. People who lie to get out of jury duty and who complain about the low quality of jurists in trials are like blabbermouth shout radio/TV Chickenhawks who lied about cysts on their asses or who had dad pull strings to keep them out of Vietnam.

Loud mouthed hypocrites are the lowest form of critics.

People who lie to get off jury duty, but who then turn around and make fun of jurists not being "peer" material are anti-American. You have become part of the problem by not serving honorably. Feeling superior to those without your "pull" lends to your thinking that you are smarter than the jurists.

When you lie to get off jury duty, you become an anti-citizen. You do yourself and your fellow citizens wrong. You still want influence in your commmunity but you want no responsibility. This is what I call immauirity.

Pulling monkey business to get out of jury duty dishonors your name. And these poor unsophisticated people on the jury with no social pull, or who might have "juice" but who refuse to use it, are the real "players" and backbone in society.

Just to shoot a few more holes in your thinking:

Let me tell you about the lack of sophisticates I served with this year. I served on a six person jury in Key West. Of the 7 of us (I was the alternate), 5 were college graduates. One was a business owner of a big construction firm here in the Keys. He, like myself, did not graduate from college. The only other male was a retired exective from a huge Madison Avenue firm. The four women were all sharp, well read, and fiercely independent. All of the women worked, in banking, retail, and the hospitality industry. The discussions in our break room ran from books to film to politics in China to music to you name it. No one in this group talked about reality TV shows or talked religion.

Down here, in Key West, which is the most "liberal" city in the Banana Republic of Florida, I found myself sitting with four Republicans and two Democrats and enjoying our talks immensely. I was the only registered Independent voter out of the seven. Still, the other six enjoyed me as much as I enjoyed them. The reason is we were honored to sit with other citizens who "did the right thing" by serving on a jury and not lying to get out of the service.

Our group of seven thought both the prosecutor and the defense attorney were terrific in their pre-trial warmups. We were anxious to hear the specifics of the case.

Unfortunately, after three days of jury selection and hearing opening arguments, the case was settled out of court before the first witness was called. The day we were dismissed, I must say, we stood out front of the courthouse, shaking each other's hands, and wishing we could have heard the case as we all wanted to know how the case was settled. We never found out. The settlement was sealed.

I received an incredible Thank-You letter from the judge who presided over our trial. It was the most heartfelt letter I've ever received from an authority figure in my life. Every single jurist received the same signed letter.

How anybody can turn their back on jury duty simply because it "interferes" with their work or will cut into their recreation time is beyond me. To do so, is to turn your back on emotions which make you feel good about yourself. These good emotions come guilt free from your heart when you "do the right thing".

Next time you get a summons to appear for jury selection, ask yourself "WWJD"?

What Would Jefferson Do?

Serve your community, and serve your country. In most areas, you are only elgible to serve once a year. And if they call again, go down, answer pre-selection questions honestly, and see if you are selected.
So you're a big businessman or a soccer mom with 3 kids or a doctor with a busy office . . . MAKE THE TIME TO SERVE! Once you serve, you'll see how important it is to be a part of the legal system which decides guilt or innocence. Without a court of law and a jury of peers, we become a nation of oligarchs and plutocrats assigning guilt and innocence with money influence.

If you serve, shove your jury duty in the faces of all the wannabe American patriot blabbermouths who juiced the system so that they would not have to appear. Those are not the kind of people you want as friends anyway. Use your jury duty as a shield to shut their big yaps. You don't need people like this in your life. Drop 'em like like a glowing ingot. Find yourself a better class of people, someone who doesn't lie as a second nature simply because jury duty is an inconvenience.

Not only that, but it's cowardly thing to shirk your civil duty because associates or friends do it. Do you take all your cues from people with distorted views on the price of citizenship? Next time, do the right thing. Serve. Your kids will look up to you. Lead by example. And think about the other benefit: if you serve, you won't be bitching about the low quality of jurists in your locale.


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Author: ncfool2 Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8761 of 41614
Subject: Re: MRK-stick to the facts Date: 8/28/2005 12:48 PM
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Great post, Richard!

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Author: eaglehaslanded Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8763 of 41614
Subject: Re: MRK-stick to the facts Date: 8/28/2005 5:21 PM
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A jurist is a judge. A person on a jury is a juror. Otherwise, good post. However, doesn't sould like any jury I've ever seen.

eag

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Author: wysockiman Big gold star, 5000 posts Home Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8764 of 41614
Subject: Re: MRK-stick to the facts Date: 8/28/2005 6:04 PM
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freethinkerkeywe posted, in pertinent part:

People who lie to get off jury duty, but who then turn around and make fun of jurists not being "peer" material are anti-American.

Your right on the money.

David

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Author: TraderJim3 Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8767 of 41614
Subject: Re: MRK-stick to the facts Date: 8/28/2005 8:06 PM
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Not only that, but it's cowardly thing to shirk your civil duty because associates or friends do it. Do you take all your cues from people with distorted views on the price of citizenship? Next time, do the right thing. Serve. Your kids will look up to you. Lead by example. And think about the other benefit: if you serve, you won't be bitching about the low quality of jurists in your locale.

Great Post!

The jurists I served with fine people, tradesmen and professionals.

Jim



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Author: michaelangela Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8777 of 41614
Subject: Re: MRK-stick to the facts Date: 8/29/2005 9:08 AM
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Nice post, but here's the other side. I eagerly go every time I'm called. I welcome the opportunity to serve (I'm an ex-Naval Officer).

I never make it past the voir dire (sp?). They always ask about education and knowledge of current events. As soon as they find out about my multiple advanced degrees and -- evidently bad -- habit of reading 3 newspapers each day, they dismiss me in a hurry. It's the same every time.

So, while I applaud your encouragement toward individual responsibility, please also recognize that many of us have empirical data to suggest that the system ain't as sincere as we'd like.

I will still go every time I'm called, though...no question.

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Author: missash Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8778 of 41614
Subject: Re: MRK-stick to the facts Date: 8/29/2005 9:16 AM
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<<I will still go every time I'm called, though...no question>>...Me, too, although as soon as it is revealed that I am a physician, I am "automatically" rejected from anything to do with personal injury cases.

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Author: JimBnd Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8785 of 41614
Subject: Re: MRK-stick to the facts Date: 8/30/2005 10:09 PM
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Everyone here missed one very troubling fact. This drug like all drugs was approved in full by the government before it was ever allowed to be sold. Did they screw up bigtime, or are we to believe that Merck alone is responsible for any problems with this drug. The fact that this even was allowed to happen casts a huge shadow not on the drug companies, but on the medical establishment as a whole. The people who approved the drug in the first place, the drug companies for attempting to create drugs to prolong life and make it more bearable for those with cronic illnesses. Sure Merck may have known about this problem, but needed more tests to verify it, what about the medical establishments committment to continuing
excellence in making sure the medicines on the market are doing what is needed without too many side effects for normal people? I used to have a lot of faith in doctors, hospitals, and such, but they sure have a long way to go in credibility. If a drug can be approved and sold for years without the FDA having any responsibility for approving the drug in the first place means there could a sorts of killer drugs on the loose killing for years before anyone knows better. Isn't that terrific? Jim

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Author: mklein9 Big gold star, 5000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8786 of 41614
Subject: Re: MRK-stick to the facts Date: 8/30/2005 10:26 PM
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Everyone here missed one very troubling fact. This drug like all drugs was approved in full by the government before it was ever allowed to be sold. Did they screw up bigtime, or are we to believe that Merck alone is responsible for any problems with this drug. The fact that this even was allowed to happen casts a huge shadow not on the drug companies, but on the medical establishment as a whole.

That is a great point that has been bothering me for a while too. Vioxx is not just Merck's problem, it is the whole industry's problem. The reliance on block-buster super-expensive drugs marketed heavily through doctors and so on....

My concern is that there may be a long-lasting backlash against big pharma as a result of Vioxx -- Vioxx being simply the catalyst. As an investor I think you always need to be thinking about catalysts that can cause major changes in your assumptions. I am getting a vague feeling that we could be seeing one -- but then again maybe not. Still, can you imagine how many attorneys are scrutinizing every drug right now for any possible angle to sue the makers for? Has this been a pattern repeated many times before, or does it look different this time? One thing that seems different is the costs (expense of inventing a new drug, and the cost to patients and insurance).

-Mike

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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8788 of 41614
Subject: Re: MRK-stick to the facts Date: 8/30/2005 11:56 PM
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That is a great point that has been bothering me for a while too. Vioxx is not just Merck's problem, it is the whole industry's problem.
-Mike


Rant alert!

Maybe the problem is not the medical industry but the legal industry.

I know very little about making drugs but I do know quite a bit about writing software and they have some things in common, IMO. Both tend to be very complex and both are extremely difficult to test under all possible conditions of use.

In the late 80s I was writing software for the Mac that had to be compatible with every other piece of Mac code. Because of that, we had to be very careful in writing "standard" code and every time we found an incompatibility with some other Mac code we had to investigate the reasons. We found a lot of non standard compliant code even in Apple software, the people who set the Mac standards in the first place. We found a bug in Excel 4.0 which we reported to Microsoft. At first they denied that there was a bug but when we insisted citing chapter and verse from "Inside Macintosh" they finally admitted that we had some "very good quotes" as my Microsoft contact called them. So I asked him when M$ was going to fix the bug. To my surprise he said that they had no plans to fix it.

I was astonished, here is a real bug, well documented, and M$ is just going to ignore it. I asked them why this was. The reply, too expensive to fix. Not enough people bothered by this bug to justify the expense. Writing the code itself was not the issue, the issue was the cost of testing the fix and my M$ contact cited a cost of around $100,000 for each test. To test complex software you have to run it with very possible equipment and software combination that any user can possibly come up with - simply mind boggling.

The industry calls these bugs "latent errors to be discovered in field testing." And what this means is that you, the user, is going to find them for the software industry. This also explains why I'm usually the last one on the block to update my software. I rather use old and tested software than new and buggy software.

Many of you will object that buggy software does not kill people like buggy drugs do. I would not be too sure about that. Every day more things are run by software: airplane autopilots, alarm systems, metal and explosive detectors, elevators, and the Internet are just some examples. A few years ago a software bug in telephone exchange software caused an outage of phone service for several hours. How many emergency calls were not made during that time?

My point is not to excuse software bugs or bad drugs. We certainly should try to prevent them from happening. My point is that bugs will happen and have to be dealt with realistically. To expect a drug with zero side effects is a Utopia, a pipe dream. A legal system that can award each Vioxx victim 250 million dollars is a broken legal system.

I think there are two problems at the heart of this: the first one is too high a level of expectations, the expectation that the drug industry can make bug free drugs. The second is that people no longer are willing to accept responsibility. This may sound strange to you but people are not willing to recognize that we live in a risky world and that each one of us has to run some of those risks. If a tire blows up, sue Firestone. If a truck overturns, sue Ford. If you spill hot coffee on yourself, sue McDonald's. There has to be some balance in this suing business.

Denny Schlesinger


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Author: mklein9 Big gold star, 5000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8789 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 2:48 AM
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Maybe the problem is not the medical industry but the legal industry.

My point is that bugs will happen and have to be dealt with realistically.

A legal system that can award each Vioxx victim 250 million dollars is a broken legal system.

...people no longer are willing to accept responsibility


You said it, Denny!! Right on!! But those noble thoughts (which I agree with) probably don't count for much. We have, I think, a number of fairly large catalytic events (health care costs skyrocketing, big pharma's focus on block-buster drugs and the costs resulting from that focus, likely to see governmental meddling, and blood thirsty lawyers seeing billions of dollars in fees) thrown into this huge complex system that may cause a large reaction within the system. The truth does not necessarily play much of a part in this once the momentum gets going. Tobacco was faced with similar issues but they didn't have the huge costs (product costs, and their own development costs) involved -- their product is a fairly cheap discretionary commodity.

I'm just raising a flag here that it finally occurred to me that maybe we should be cautious about the short- or mid-term future of big pharma. If we see evidence of a tidal wave of these things building, we should be particularly careful about our pharma investments. Once lawyers and congressmen get involved, the one thing you know is that the outcome will be completely unpredictable.

I'd be interested what others think about this too...

-Mike

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Author: PopeyesAddict Two stars, 250 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8795 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 2:39 PM
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If you spill hot coffee on yourself, sue McDonald's

Not to agree or disagree with your post, but much has been made of this story over the years and it has taken on a folk lore like status as a symbol of everything that's wrong with lawsuits and such.

However there are some facts in this case that many people are not aware of:

1. The coffee in question was significantly hotter than legally allowed.
2. The coffee was so hot that the woman had third degree burns on her lap - through her clothes. Now, I'm clutzy and have spilled much coffee on myself over the years and have never come had any sort of lingering burn as a result
3. The McDonalds that served her the coffee had been sited several times in the past (including, I think, the day before) for keeping their coffee way too hot.

So the McDonald's wasn't sued because the lady spilled her coffee. They were sued because the coffee was dangerously hot.

Imagine a car company. They make a car such that in a one car collision - even at low speed, the driver will die. Now, obviously the driver is responsible for the crash, but the car company is liable because the car is so dangerous.

Of course this has nothing to do with Merck. Just interesting.

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Author: BuildMWell Big gold star, 5000 posts Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8796 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 3:42 PM
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"I used to have a lot of faith in doctors, hospitals, and such, but they sure have a long way to go in credibility. If a drug can be approved and sold for years without the FDA having any responsibility for approving the drug in the first place means there could a sorts of killer drugs on the loose killing for years before anyone knows better. Isn't that terrific?" - JimBnd

I look at the same set of circumstances you cite and come to the opposite conclusion. I think the system actually works quite well and there is no real problem. Trial lawyers look for any opening to find a way to sue and make money for themselves, but they rely on any implied or actual weakness in the system. They want us to believe in the idea of perfection and they demand restitution whenever there is even a small "glitch" in the system. That is wrong and we must recognize the fault of that whole concept.

All progress comes from experimentation and the scientific method. We rarely know the ultimate outcome and all of the ramifications of anything man attempts until we have the benefit of hindsight. Pollution did not exist because mankind blatantly ignored the problems, it existed because mankind had no experience with the waste products of progress. Once we saw the problem, we attacked it and solved it. That required new experimentation and more scientific method. We learn by doing...not by suing.

You started your post with, "Everyone here missed one very troubling fact. This drug like all drugs was approved in full by the government before it was ever allowed to be sold. Did they screw up bigtime, or are we to believe that Merck alone is responsible for any problems with this drug."

That is what I see as the real problem. People miss the entire picture. We want to live longer and healthier, but we will not accept the biggest fact of life. We cannot have progress without some risk. That risk is up to each of us to determine for ourselves.

We elect a Representative, two Senators and a President to protect us and Vioxx proves that even those protections are not infallable. We are all human beings, after all. We are all in this whole thing together but we have to recognize the weaknesses of the greatest society ever devised by mankind. That means we cannot jump at every chance to sue the ones who make all the progress possible.

You make my point when you say, "The fact that this even was allowed to happen casts a huge shadow not on the drug companies, but on the medical establishment as a whole. The people who approved the drug in the first place, the drug companies for attempting to create drugs to prolong life and make it more bearable for those with cronic illnesses."

You obviously are seeing how the Left has undermined the whole system with their actions. These lawsuits have damaged the FDA, the Medical profession, and drug companies as well. Our inability to see every possible shortcoming is being used to kill the whole concept of progress. But, aren't we all much better off in 2005 than the typical America was 100 years ago? Look at the progress we have made in all aspects of our existence...but the trial lawyer looks for any fault. They fail to see the progress because that is not to their advantage. They live off of the misery of the few, not off of the gains of the whole.

We have fought great wars for our system...but we are still under attack. The problem is, most Americans do not see the war, what is under attack nor the problems with their own inaction.

"Sure Merck may have known about this problem, but needed more tests to verify it, what about the medical establishments committment to continuing excellence in making sure the medicines on the market are doing what is needed without too many side effects for normal people?" - JimBnd

There you have it. Merck knew about the possible side effets, and they put them into the warning labels. They fought to keep the warnings in context because if they over-sold the negative, the drug would never be bought by anyone. After all, Merck is in business to sell new drugs...that is their business for goodness sake. The FDA reviewed the whole thing and gave their approval since no harmful effects showed up in the required preliminary testing. It takes real life experience to get the longer term tests made. And, even after the actual risks weree shown, the FDA told Merck they could put the drug back onto the market! There are benefits that the FDA deemed to exceed the potential harm.

This is where tobacco becomes a great example for us. Look at your television and see how Philip Morris has been forced to advertize. Their ads talk about the opposite of what is good for Philip Morris. They advertize about all of their efforts to stop people from smoking! Does that make any sense? Everything has been reversed...it is totally illogical. And, it is all because of our legal system...that is what is broken. They have legal businesses actually trying to drive their customers away. Have we lost our minds here in America?

What is on trial is our future...not Merck. Merck is just another pawn in the game. Our ability to make progress is what is on trial. Some people want to put a stop to our successes. They see a way to get both money and power by nitpicking the few weaknesses of our system. But, if they succeed in their goals, America will be the loser. The system works just fine without these lawsuits. Thus, the problem is not with our pharmaceutical companies, it is with the lawyers who are out to abuse the system for personal gain.

Unfortunately, the vast majority of Americans do not look into the problem in enough depth to understand it. They believe what they read in the newspapers, hear on the radio or see on the television. The media is not going to tell the story like I have presented it here. They are on the opposite side of progress too and they have an agenda that plays to the trial lawyers advantage. Life is not a Utopian dream...it is full of risks. However, the risks today are much lessened from even 20 years ago. That is what progress actually gains for us.

Here is the good news. More people are becoming stock holders each day. Shareholders are in a position to see the problem from all sides and we are the ones who can bring about change. We are the ones who pay for all of this foolishness. The company management does not pay, the politicians do not pay, the FDA does not pay and the trial lawyers do not pay...they all actually gain from the confusion. Only we, the shareholders, stand to lose. The more people who see this and understand it, the better off we will all be. We are gaining on the problem.

Business pays for everything in America. All jobs come from business, all Federal and State taxes are paid by business profitability. Business funds progress because that is how a profit is earned. The shareholders own the businesses and we have to stand up for our rights. We have a right for the companies we own to make progress, develop new products and bring them to market. Then, if they make a bad decision, we have a right to expect them to pay fair compensation to anyone who is actually damaged. But, that has to be decided on an individual case-by-case basis. We do not need no stinkin' lawsuits.

What is actually gained from these huge, highly hyped, class-action suits? They are an impediment to progress and worse yet, to our abilty to make money. We are the injured party here. We have a legitimate case against the people who are suing without real damages. They are hurting us and we can prove the damages in real, honest U.S. dollar terms. Unfortunately, we are invisible to most people. They think some faceless corporation is footing the bills for this illogical game. But, we are the corporation...we own it.

We have some educating to do...but don't expect it from the nation's education system. They have an agenda that is counter to ours also. They have no concept of Capitalism and how it actually works. Genuine education comes from being a stockholder.

That should build your faith in America. We have a system that works just fine. It just happens to be under attack today for all of the wrong reasons. William Shakespeare saw the problem clearly over 400 years ago...some things just never change. The problem was too many lawyers in 1605 and it is the same today.

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Subject: Re: MRK-stick to the facts Date: 8/31/2005 3:56 PM
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So the McDonald's wasn't sued because the lady spilled her coffee. They were sued because the coffee was dangerously hot.
PopeyesAddict


Yes, I knew all that but I still left it in my post. Here is why. Let's suppose the lady in question had gone to Joe's Greasy Spoon instead of to McDonald's and had also been injured by extra hot coffee, do you think the lawyers would have bothered to sue? I doubt it because Joe's Greasy Spoon does not have the same deep pockets as McDonald's Golden Arches does.

My conclusion, McDonald's was not sued because "the coffee was dangerously hot" but because they have the deep pockets to fatten ambulance chasing lawyers. "The coffee was dangerously hot" was the excuse to extort McDonald's.

I think of it this way, there should be checks and balances on corporate behavior but there should also be checks and balances on what ambulance chasing lawyers are allowed to get away with.

Checks and balances is the ticket.

Denny Schlesinger


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Author: SirTas Big gold star, 5000 posts Old School Fool CAPS All Star Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8798 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 5:00 PM
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My conclusion, McDonald's was not sued because "the coffee was dangerously hot" but because they have the deep pockets to fatten ambulance chasing lawyers. "The coffee was dangerously hot" was the excuse to extort McDonald's.

Not sure I get this. By my lights, you seem to be using the word "excuse" as I might use the term "reason." (I think.)

But I can't figure out the part about extortion at all. I don't think there was any extortion going on. McDonald's was trying to take advantage of people. They had been guilty in several similar cases in the past. [If you don't like the word "guilty," then let's say that they had played a similar role in other similar cases in the past.] This woman tried to recover her hospitalization costs from them, but they refused. She got a lawyer to take them to court. The little guy--or little lady!--won. McDonald's said in court that the coffee HAD to be served at that high temperature. They said they couldn't do otherwise. After she won, they did otherwise, and the coffee was served at a more normal temperature.

I can see the need for checks and balances. (I think the money helped to check McDonald's. It seems to have gotten their attention.)

Of course having a lawyer will help a person get the attention of some large corporation. And the lawyer may be in it for the money. McDonald's was in business for money too. Maybe the only party in this case who was not in it for the money was the woman, who wanted a cup of coffee--she certainly didn't want to get burned, go to the hospital, get involved with a lawyer and end up in court!

--SirTas




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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8799 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 6:23 PM
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McDonald's was trying to take advantage of people.
--SirTas


Not sure I get this. How is serving coffee extra hot taking advantage of people? :)

But you never addressed my question, would they have sued Joe's Greasy Spoon? I think not and that is what I base my argument on. They go after deep pockets, to paraphrase Willy Horton, because that's where the money is.

By my lights, you seem to be using the word "excuse" as I might use the term "reason." (I think.)

The hot coffee episode was the proximate cause of the suit but not the ultimate cause. It's the ultimate cause that we are disagreeing on. (I'm going to have to tighten up my English :)

Denny Schlesinger

PS: I think we have discussed this issue enough. I'm going to drop it.


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Author: Matt1344 Big gold star, 5000 posts Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8800 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 6:29 PM
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"to paraphrase Willy Horton, because that's where the money is."

Hi Denny,

Was Horton a friend of Willie Sutton's by any chance???

Regards, Ken

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Author: ncfool2 Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8801 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 6:44 PM
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I think we have discussed this issue enough. I'm going to drop it.

Just be careful not to drop it in your lap, Willy! (as Michael Dukakis - the ultimate 'Mr. Nice Guy' - might have advised during the debate if questioned on the matter by the aforementioned Mr. Horton)

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Author: patterj Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8802 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 7:38 PM
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I've read over 8,000 BMW posts and this is my first reply. You guys have taught me so much.

I feel compelled to respond to this whole Merck thing. I have practiced medicine for 25 years as an ER doctor and for the last 10 years have been extremely fortunate to spend my clinical time working with residents (doctors in training) I sometimes feel that drug companies are evil. If your interested in just how bad they can be, go to http//:www.nofreelunch.org to see how pharmaceutical companies seek to influence physicians.

On the other hand I have sincere concerns regarding the effectiveness of our legal system. I have a good bit of experience as a defense expert and, alas, some as a plaintiff, in the malpractice arena. I live in Pennsylvania, the home of the Philadelphia Lawyer and the malpractice capital of the known universe. Our tort system is based on showmanship and influence rather than facts. As a previous post mentioned, plaintiff's attorneys (and defense attorneys)try to "impeach" or discredit, the opposing side. I'm not surprised that a jury ignored science to punish a company accused of covering up facts.

My whole point here is to say that I don't know if Merck was a bad guy or a good guy. I do know that the physicians who prescribed Vioxx had no idea that there were problems until the flurry of data that came out immediately before the drug was pulled from the market. Darn, I keep up with the literature and used the stuff myself.


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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8803 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 7:44 PM
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Was Horton a friend of Willie Sutton's by any chance???

Regards, Ken


I don't think so. But it turns out that neither of them said it:

http://www.banking.com/aba/profile_0397.htm

Denny Schlesinger


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Author: captainccs Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8804 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 8:06 PM
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Just be careful not to drop it in your lap, Willy!
ncfool2


The funny thing is that I was careful! Before using the Horton-Sutton quote I used Google to check it out as I normally do when I'm not absolutely sure of my facts. I did a search on Willy Horton and I found the quote, ergo, he must be the author. But I now double checked and the quote is not there... I must have been in a rush. Oh well. :(

Sorry guys!

Denny Schlesinger


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Author: MWFool100 Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8805 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 8:19 PM
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Maybe it was the other Horton. I hear he heard a who.

MW

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Author: MWFool100 Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8806 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 8:29 PM
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there were problems until the flurry of data that came out……

Patterj,

Imagine if the data had not come out showing Merck culpable. The lawyers could be suing doctors instead.

MW


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Author: Matt1344 Big gold star, 5000 posts Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8808 of 41614
Subject: Re: MRK-stick to the facts Date: 8/31/2005 10:13 PM
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"I don't think so. But it turns out that neither of them said it:"

Hi Denny,

Thanks for the link. Amazing that I've believed he said that for most of my life ;-/

Oh well, one more bubble burst...

Regards, Ken

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Author: Lynton Two stars, 250 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8809 of 41614
Subject: Re: MRK-stick to the facts Date: 9/1/2005 12:14 AM
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And, even after the actual risks weree shown, the FDA told Merck they could put the drug back onto the market!

Actually, I don't believe the FDA has told Merck anything, yet, at least officially. An advisory committee to the FDA, in a narrow vote on Vioxx, did recommend that the benefits outweighed the risks.

However, as they usually say, while the FDA typically follows the recommendations of the advisory committee they are not obligated to follow them. In fact, I recall cases where the advisory committe has recommended against approval and the FDA has overriden the committee vote to approve the drug. Likewise the other way, especially on narrow votes.

Furthermore, in this case, as I recall, the FDA didn't withdraw approval; Merck "voluntarily" stopped selling Vioxx.

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Author: TMFAdmiral Big gold star, 5000 posts Feste Award Winner! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8811 of 41614
Subject: Re: MRK-stick to the facts Date: 9/1/2005 5:44 PM
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Hi Everyone,

On Feb 18th The FDA advisory panel voted as follows for Vioxx (rofecoxib), Celebrex (celicoxib), and Bextra (valdecoxib) http://www.fda.gov/ohrms/dockets/ac/05/minutes/2005-4090M1_Final.htm

Do the available data support a conclusion that valdecoxib significantly increases the risk of cardiovascular events?

Yes No Abstain
Vioxx 32 0 0
Celebrex 31 1 0
Bextra 32 0 0

Does the overall risk versus benefit profile for rofecoxib support marketing in the US?

Yes No Abstain
Vioxx 17 15 0
Celebrex 31 1 0
Bextra 17 13 2

Subsequently on April 7th the FDA asked Pfizer to withdraw Bextra (which Pfizer has done but disagrees with the decision). The FDA also said that they "will carefully review any proposal from Merck for resumption of marketing of Vioxx." http://www.fda.gov/bbs/topics/news/2005/NEW01171.html

Lynton correctly stated that they have never asked Merck to withdraw Vioxx.

Best Regards
Philip



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Author: NoGoodReason Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8816 of 41614
Subject: Re: MRK-stick to the facts Date: 9/2/2005 5:12 PM
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However there are some facts in this case that many people are not aware of:

Facts? Hardly.

1. The coffee in question was significantly hotter than legally allowed.

Fact: there is no "legal maximum temperature for coffee".

2. The coffee was so hot that the woman had third degree burns on her lap - through her clothes. Now, I'm clutzy and have spilled much coffee on myself over the years and have never come had any sort of lingering burn as a result

Fact: The woman's burns were the result of the coffee saturating her clothes, which clung to her skin. Hardly a burn received "through" her clothing.

3. The McDonalds that served her the coffee had been sited several times in the past (including, I think, the day before) for keeping their coffee way too hot.

Fact: McDonalds serves tens of millions of cups of coffee a year. Their coffee burns a very few people each year. This woman's carelessness was the primary cause of her burns.

So the McDonald's wasn't sued because the lady spilled her coffee. They were sued because the coffee was dangerously hot.

Fact: Many people enjoy being served piping-hot coffee. This woman's carelessness should not deny them the right to enjoy their coffee at their desired temperature.

Imagine a car company. They make a car such that in a one car collision - even at low speed, the driver will die. Now, obviously the driver is responsible for the crash, but the car company is liable because the car is so dangerous.

Imagine trying to draw an absurd correlation...

-NGR



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Author: nuggetmonkey One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8817 of 41614
Subject: Re: MRK-stick to the facts Date: 9/2/2005 6:43 PM
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The jury was trying to send a message to ALL the drug companies...




DO NOT MAKE DRUGS.






(just say no)

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Author: foolishpetey One star, 50 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8818 of 41614
Subject: Re: MRK-stick to the facts Date: 9/3/2005 9:14 AM
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Not to argue but for the sake of discussion...

I'm sorry - but coffee hot enough to cause third degree burns is TOO HOT TO DRINK! You'd have only teeth left in your head! And I don't buy that the burns were caused because her clothes 'clung' to her skin (unless they melted onto her skin because of the heat, I rather expect the wet clothing involved came off rather quickly).

Definition of 3rd degree burn per Stedman's Medical Dictionary...
"destruction of the ENTIRE SKIN; deep third degree burns extend into subcutaneous fat, muscle, or bone and often cause much scarring."

I'm all for personal responsibility and also believe that lawyers need to be reigned in - but that particular Micky Ds screwed up. Does that mean that ALL Mcs (and others) have to put a warning on their cups that the contents are hot? Now that is the ridiculous result of the lawsuit!



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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8819 of 41614
Subject: Re: MRK-stick to the facts Date: 9/3/2005 1:20 PM
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Fact: there is no "legal maximum temperature for coffee".

That is true. There is a "resonable and expected" temperature however, it could be defined as "the temperature every other chain and restaurant serves it at, and the temperature that comes out of your coffeemaker at home". The McDonald's temperature was significantly hotter than that, served at a temperature which by any medical textbook would cause 3rd degree burns if splashed on human skin.

Thus the jury decides that the customer doesn't realize the temperature is "superhot", making McDonald's liable. Right or wrong, that's what happened.

Fact: The woman's burns were the result of the coffee saturating her clothes, which clung to her skin. Hardly a burn received "through" her clothing.

What else could it be? The coffee went through her clothes and burned her skin.

Fact: McDonalds serves tens of millions of cups of coffee a year.

Fact. McDonald's had settled or paid for over 700 such incidents previously. Somewhere along the line you might think someone in the insurance department, or legal department, or common sense department would say "Is this a good idea?"

Fact: Many people enjoy being served piping-hot coffee.

That's true. Many people enjoy walking around stores with unsafe shelving, merchandise falling on their heads, or other dangerous situations like faulty electrical boxes, but that doesn't make it a good idea - and if you have been cited for such unsafe practices 700 times previously, you might find a jury which thinks you aren't paying attention.

Rightly so, frankly.

http://boards.fool.com/Message.asp?mid=22857467
http://boards.fool.com/Message.asp?mid=22858040

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Author: BuildMWell Big gold star, 5000 posts Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8820 of 41614
Subject: Re: MRK-stick to the facts Date: 9/3/2005 2:40 PM
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Can we move on from McDonalds coffee and get back to the BMW Method? Goofyhoofy has some things to show us. he posted the following about a year ago:

http://boards.fool.com/Message.asp?mid=20691386&sort=username

I am curious as to how that BMW Method portfolio of yours has done over time. How about an update?

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Author: Vol Three stars, 500 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8825 of 41614
Subject: Re: MRK-stick to the facts Date: 9/4/2005 9:11 AM
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<<The McDonald's temperature was significantly hotter than that, served at a temperature which by any medical textbook would cause 3rd degree burns if splashed on human skin.>>

Which medical textbook is this. Not saying there isn't one, but I've read a bunch and must have missed it.

<<McDonald's had settled or paid for over 700 such incidents previously.>>

Wow, that's amazing. While a very small %age of the Billions served, that's still a pretty high number. I wonder how many Starbucks has settled. What is the source of this info?

I've had coffee everywhere from a greasy spoon to Starbucks and fancy restaurants and it's all hot. I'd say any coffee right out of the pot allowed to sit on the skin for more than 5-10 seconds would cause a pretty bad burn. Heck, some of the hottest coffee I've seen is in the hospital cafeteria. Good thing we've got a burn unit...

Vol

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Author: ncfool2 Big gold star, 5000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8826 of 41614
Subject: Re: MRK-stick to the facts Date: 9/4/2005 11:31 AM
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I don't know how the portfolio(s) have done, of course, but the 16 stocks referenced in GoofyHoofy's post present an interesting picture since 6/2/04 (when the charts refered to in that post were last updated). In that 15-month period, to set the stage, the NASDAQ Composite is up 7.6%, the S&P 500 is up 8.3% and the Dow Industrial Average is up 1.8%. All percentages are from 6/2/04 through 9/2/05: i.e., Friday's close.

If I've done the math correctly, only five of the 15 stocks have been "market performers", roughly speaking, while four have significantly outperformed the averages and seven have significantly underperformed Numbers have been rounded to nearest percentage point in all cases.

The stars:
---------
HP +134%
AMGN + 46%
WYE + 25%
ED + 21%

The dogs:
----------
HUF -97%
DAL -84%
FNM -26%
FITB -24%
LZB -22%
WMT -21%
VIA - 9%

The average joes
-----------
ABT + 9%
MSFT + 3%
GIS + 1%
DELL - 2%
TR - 3% (adjusted for 3% stock dividend)



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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8827 of 41614
Subject: Re: MRK-stick to the facts Date: 9/4/2005 1:27 PM
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Which medical textbook is this. Not saying there isn't one, but I've read a bunch and must have missed it.

As part of the lawsuit, the plaintiffs hired people to go to other restaurants and measure the temperature of the coffee. The hottest they found was 160 degrees. The McDonald's training manual mandates that their coffee be brewed at 195 to 205 degrees, and not served at less than 180 degrees.

The temperatures at which third degree burns from liquids are made are easily available anywhere; if there's a medical text that doesn't have it I'd be surprised. The various and relative temperatures and times it takes to produce such burns was also part of the lawsuit.

<<McDonald's had settled or paid for over 700 such incidents previously.>>

Wow, that's amazing. While a very small %age of the Billions served, that's still a pretty high number. ... What is the source of this info?


The lawsuit. Did you follow it at all?

Even more eye-opening was the revelation that McDonald's had seen such injuries many times before. Company documents showed that in the past decade McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from scalding injuries for more than $500,000.
http://www.vanfirm.com/mcdonalds-coffee-lawsuit.htm

That it's "a very small percentage" isn't much of a defense. If you sell a dangerous product you will eventually be called to account for it. If McDonald's had 700 prior reports of glass in their burgers, I don't think a good defense would be "it's a small percentage, so we didn't bother thinking about it."

I wonder how many Starbucks has settled.

I don't know. I suspect far fewer, based on the fact that nobody has had such a large award, and that nobody has demonstrated that they have had hundreds of prior incidents on which they might rethink their business practices.
 


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Author: Goofyhoofy Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8828 of 41614
Subject: Re: MRK-stick to the facts Date: 9/4/2005 1:50 PM
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I am curious as to how that BMW Method portfolio of yours has done over time. How about an update?

Aha. I had complete forgotten about this.

OK, let's see.

The 19 stocks listed as "Near 30 year lows" went from $19,000 to $22.317.30, a gain of $3,317.30. Minus 3.5% inflation ($665) = actual gain of $2,625, or a bit over 10%.

The 19 stocks listed as "Near 30 year lows2" went fromn $19,000 to $19.744.44. Virtually flat once you factor in inflation.

The portfolio which I named "At 30 year lows" (5 stocks) went from $5,000 to $5,687.14. Minus inflation of $175 on the original $5,000, it's about a 10% gain.

Port #1: ABS ADP ALOG BMY BRK.A CAG CLX CPB CSX DD EFX G GIS HD HNZ KO KSU LTD MRK

Port #2: MXIM MYL NWL PBI RD SBC SC SGP SE SON SUNW TFX TR VVI WAG WIN WMT WWY WYE

Port #3: ABT AMGN GSK MSFT THC

Total total total overall performance: $43,000 grew to $47,718 in 16 months, of which about $1550 would have been "inflation". So roughly $43k to $46k, about 7% overall.

Finally, I'll just scratch my memory and think I recall something about this not actually being "a BMW port", but a rough and dirty look at a bunch of stocks which were at or near their historic lows, without regard to how their CAGR was performing or much of anything else. I could be wrong about that, though.

Can we move on from McDonalds and get back to the BMW Method?

Sure. Pour me some coffee, wouldja?

You wanna look at my AMR or MESA suggestion from back in April that I was told was a terrible idea? AMR, about 30% (had 60% but this fuel thing will kill them), MESA, about 22%. Ho ho ho, if only I'd bought them!
 


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Author: bassy31 Two stars, 250 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8829 of 41614
Subject: Re: MRK-stick to the facts Date: 9/5/2005 1:12 PM
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William Shakespeare saw the problem clearly over 400 years ago...some things just never change. The problem was too many lawyers in 1605 and it is the same today.

The line: "The first thing we do, let's kill all the lawyers."
The play: Henry VI, Part 2 (Act IV, Scene 2).
The speaker: Dick the Butcher.
The speaker's role: Toadie to Jack Cade, insurrectionist and murderer.
The context:

Cade: Be brave then, for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny; the three-hoop'd pot shall have ten hoops, and I will make it felony to drink small beer. All the realm shall be in common, and in Cheapside shall my palfrey go to grass; and when I am king, as king I will be--

All: God save your Majesty!

Cade: I thank you, good people--there shall be no money; all shall eat and drink on my score, and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.

Dick: The first thing we do, let's kill all the lawyers.

Cade: Nay, that I mean to do. . . .

The point: The first step in reaching a totalitarian/communist "utopia" is to eliminate the lawyers who would stand in the way.

I always laugh when I see that line attributed to "Shakespeare"--it's most definitely not what the Bard stood for. (But I suppose it's easy to miss the irony if you read only the line, not the play.)

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Author: iamski Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8849 of 41614
Subject: Re: MRK-stick to the facts Date: 9/7/2005 10:31 AM
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Great post freethinker!! BUT what's wrong or unsophisticated about talking about religion?

BTW: I'm proud to have served on a murder trial approx. 20 years ago. The hardest thing I ever did but would do it again.

Those who do not do their civic duty forfeit their right to complain or criticize our condition as a nation in my view.

-Iamski

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Author: PopeyesAddict Two stars, 250 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 8855 of 41614
Subject: Re: MRK-stick to the facts Date: 9/8/2005 1:08 AM
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Facts? Hardly.

1. The coffee in question was significantly hotter than legally allowed.

Fact: there is no "legal maximum temperature for coffee".

You're right. I went back and looked at the case again and I was wrong about this. It's been awhile. There was no health code on this, but
"By its own corporate standards, McDonald's sells coffee at 180 to 190 degrees Fahrenheit. A scientist testifying for McDonald's argued that any coffee hotter than 130 degrees could produce third degree burns. However, a doctor testifying on behalf of Ms. Liebeck noted that it takes less than three seconds to produce a third degree burn at 190 degrees."

2. The coffee was so hot that the woman had third degree burns on her lap - through her clothes. Now, I'm clutzy and have spilled much coffee on myself over the years and have never come had any sort of lingering burn as a result

Fact: The woman's burns were the result of the coffee saturating her clothes, which clung to her skin. Hardly a burn received "through" her clothing.

Was she wearing clothes? Did the coffee not soak through them? Then that's "through" her clothes. Jeez. I've studied boundry layer theory and even a thin layer of material can significantly reduce temperatures.

3. The McDonalds that served her the coffee had been sited several times in the past (including, I think, the day before) for keeping their coffee way too hot.

Fact: McDonalds serves tens of millions of cups of coffee a year. Their coffee burns a very few people each year. This woman's carelessness was the primary cause of her burns.

In the 10 years prior, they had received 700 complaints. That doesn't count people who didn't bother to complain. Besides, that's not really the point - unless you think that there is some number of people its okay to severely burn.

So the McDonald's wasn't sued because the lady spilled her coffee. They were sued because the coffee was dangerously hot.

Fact: Many people enjoy being served piping-hot coffee. This woman's carelessness should not deny them the right to enjoy their coffee at their desired temperature.

Perhaps. But neither should their customers desires remove McDonald's liability.

Imagine a car company. They make a car such that in a one car collision - even at low speed, the driver will die. Now, obviously the driver is responsible for the crash, but the car company is liable because the car is so dangerous.

Imagine trying to draw an absurd correlation...

Well, now you're just being belligerent.

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