Epstein Takes on Lanier on CNBC

August 23, 2005

Mark Lanier and Richard Epstein discuss the jury decision against Merck regarding the painkiller Vioxx

Kudlow & Company, CNBC

LARRY KUDLOW, host:

Welcome back, everybody. A couple days ago a jury awarded $253 million in the first case against Merck over the painkiller Vioxx. Jurors say Merck withheld information from patients and, in essence, lied to make a buck. Critics say Merck was done in by a jury swayed by junk science. Joining me now to discuss and debate, Mark Lanier of the Lanier Law Firm, the plaintiff's attorney in the Vioxx trial, and Richard Epstein, James Parker Hall, distinguished service professor of law at the University of Chicago and senior fellow at the Hoover Institute.

Mr. Epstein, welcome. Mr. Lanier, welcome. You've been very kind to us and I appreciate your coming back.

Mr. Lanier, let me give you the first question, if you will, from a Wall Street Journal article that has many people troubled. Juror John Ostrom said, quote, "Whenever Merck was up there, it was like wa-wa-wa," he said, mimicking Charlie Brown's teacher in the TV cartoon. Quote, "We didn't know what the heck they were talking about," end quote. So, Mr. Lanier, some people are saying that you outlawyered the Merck opposition, but actually, the real science was never part of the case. What is your response, sir?

Mr. MARK LANIER (Vioxx Plaintiffs Attorney): First of all, I'd be flattered and it'd be wonderful to say, `Oh, yes, I really outlawyered them.' But it wouldn't be true. The truth is, the science was right there, front and center, and the problem was the Merck lawyers were not talking about the science, and that's why they sounded like Charlie Brown's teacher with the wa-wa-wa-wa-wa. The science came straight from the Merck manual, which Merck itself published. And they were Merck's witnesses that were having to say to the jury, `Please don't believe our manual. Please don't believe what it says in there.' That's not reputable.

KUDLOW: Mr. Epstein, let me go to you. Professor Epstein, do you believe that? Do you agree with what Mr. Lanier said? And let me ask you, beyond that, from your readings of it, was there a clearly established link between Vioxx and arrhythmia, which is really what did this patient in and that they never really clearly tied it to a heart attack and that this guy was--What?--57-year-old and his arteries were 70 percent clogged. So in your view, is the linkage between Vioxx and the death of this patient clear?

Professor RICHARD EPSTEIN (University of Chicago Law Professor): Oh, it's clear that it wasn't the case. What Mr. Lanier was referring to was all of the risk assessment that was made with respect to the original marketing. The science that was junk was the question of whether or not this case was caused in this regard. This man was a walking time bomb. The fact that he was fit made him all the more dangerous because he could sustain the exertion that would send the thing off. Mr. Lanier had to invent the blood clot and then he had to assume that the blood clot was caused by Vioxx. All the studies you're talking about are at 800 milligrams for over 18 months, and the particular case that he has was for eight months with an undisclosed dosage. This was an absolute fabrication and, in fact, the doubters in Merck who said that the risks were not as great as he supposes were, in fact, correct. If he knew anything about the way in which clinical trials worked, you would always find that there are these kinds of conflicts going one way or another.

KUDLOW: Well, Mr. Lanier, the professor has a point, doesn't he? I mean, you're supposed to--18 months was the DMZ line for danger, and no one knows how much the deceased took. He was a runner, he was an athlete, but he was in terrible condition with his hardened arteries. So he may have taken six, eight, 10 Vioxx tablets a day, way over the dosage.

Mr. LANIER: No, Larry, actually, with all due respect to the esteemed professor, remember the esteemed professor is a pharmaceutical man. He works for the pharmaceutical industry as a consultant, and so he's up there--I'm basically talking to Merck here.

Prof. EPSTEIN: No, you're not.

Mr. LANIER: And now...

Prof. EPSTEIN: You're just putting words because you don't have the courage to say what this is about.

Mr. LANIER: With due respect...

Prof. EPSTEIN: I have not worked for Merck on this case at all.

Mr. LANIER: With due respect...

Prof. EPSTEIN: And please just talk about this on the merits rather than trying to constantly cast aspersions on people. You're a bully, Mr. Lanier, and you're not going to get away with it now.

Mr. LANIER: I would appreciate it if you would give me a chance to answer. If you'll look at the evidence...

KUDLOW: But, Mr. Lanier, on the substance of the question...

Mr. LANIER: ...here's the deal. You said...

KUDLOW ...let's stay with that.

Mr. LANIER: But both of you have said--both of you have said nobody knows what this man was on. The man was on a 25-milligram dose. He took the medicine every 30 days. We have the prescriptions from Wal-Mart that showed every 30 days on the button he filled that new prescription. His wife said he took it. And so this is a man, we know exactly the dose, and Merck did the test that showed at a 25-milligram dose, after two months, you're going to have five times the risk of heart attack as if you're not on it.

Prof. EPSTEIN: No. There's no such study. There's no such study.

Mr. LANIER: Absolutely. It's called the vigor study, Professor Epstein...

Prof. EPSTEIN: No. No.

Mr. LANIER: ...and I'll be glad to e-mail you a copy of it.

Prof. EPSTEIN: Fine, you mail me all the studies you want. But in this particular case, the evidence has got to be established. There are all sorts of alternative causes that are perfectly compatible in this case. Even the New York Times...

Mr. LANIER: All nine alternative causes...

Prof. EPSTEIN Even the New York Times...

Mr. LANIER: All nine alternative causes that are listed by Merck...

Prof. EPSTEIN: No.

Mr. LANIER: ...in its Merck manual, Merck itself had to say were not there. He wasn't diabetic, he didn't have high cholesterol, he didn't have high blood pressure, he wasn't overweight, he was in shape, he exercised...

Prof. EPSTEIN: No, he...

Mr. LANIER: ...he didn't have a family history. This man was a jogger who ran five miles earlier in the day.

Prof. EPSTEIN: No, that is exactly why he died. He could die simply of acidosis because of dehydration, a whole variety of other short-term situations.

Mr. LANIER: They ran the test for dehydration in the autopsy, he was not deyhdrated.

Prof. EPSTEIN: No, and you are--you do not have any...

Mr. LANIER: The blood test showed it.

Prof. EPSTEIN: No.

KUDLOW: Actually, let me jump in for a second, Mr. Lanier, on this point. I thought this business about the examiner suddenly hypothesizing about a blood clot, it's really just a hypothesis, and then blaming it on a heart attack. It's kind of hard to swallow from serious people who've followed this case. Would you comment on that?

Mr. LANIER: I'd be glad to. In the Merck manual itself, it says that over 90 percent of the time you have a heart attack, you suffer an arrhythmia. What the autopsy coroner said is, `What killed him was his arrhythmia. His heart wasn't beating regularly.' What caused the arrhythmia was more likely than not a heart attack, which the Merck manual itself says most of the time is what causes a fatal arrhythmia.

Prof. EPSTEIN: Look, that...

KUDLOW: Well, Mr.--Professor, doesn't that--I mean, there's a difference between arrhythmia and a heart attack, is there not?

Prof. EPSTEIN: Well, one...

KUDLOW: They may be related but insofar as Vioxx is concerned, has anyone even to this day linked them to the arrhythmic problem?

Prof. EPSTEIN: As best I can tell, the answer to that turns out to be no. And the evidence in this case...

KUDLOW: And didn't you also...

Mr. LANIER: Wrong! Wrong!

Prof. EPSTEIN: No, it's not wrong.

KUDLOW: Let me raise another factoid. Hang on a second.

Prof. EPSTEIN: I mean, this is a situation in which what we do...

KUDLOW: The federal--the FDA itself--this is what troubles me, too. I want you guys to both comment on this. In February, the FDA advisory committee returned Vioxx to the marketplace along with Celebrex. In April, the FDA said they failed to find significant heart risks from COX-2 inhibitors. And then even after that, up in Canada, an expert panel voted 11-to-1 to bring Vioxx to the market. Now, Professor, if the government is saying yes, then why are we all blaming Merck?

Prof. EPSTEIN: Well, look, the government stories are based upon both the cost and the benefits. And we know that Vioxx in many ways, with respect to arthritic pain and with respect to intestinal discomforts and inflammations all of that stuff, is much better than any other drug. And whenever you want to make these assessments, you've got to look at the benefit side as well as the cause side. And so the judgment to use it is a perfectly sensible judgment. I've gotten, after I wrote my critique of Mr. Lanier in The Wall Street Journal, statements from physicians who just lamented the fact that they couldn't use the drug which they regarded as best for themselves and for other people. And what happens here is you are basically taking a set of risks, which are uncertain, and are using this to knock out a drug which, as best I can tell, is better than many of the alternatives. It's much too paternalism.

KUDLOW: All right. Last word, Mr. Lanier. You were nice enough to come back. Last word, sir.

Mr. LANIER: Last word, if the professor had a student write that on an exam, he'd flunk him out of law school...

Prof. EPSTEIN: No, I would not.

Mr. LANIER: ...because it's simply not the case. The truth of the matter is, this was about Merck knowing it increased your risk of a heart attack five times and refusing to tell anyone because it wanted to make more money. The Merck document said, `If we can put off warning for just four months, we'll make an extra $229 million.' And it's not whether or not you sell it, it's don't we have a right to know if it's going to kill us? And I think we have a right to know.

KUDLOW: All right. Those--you have it. Mark Lanier of the Lanier Law Firm, Professor Richard Epstein of the University of Chicago, a spirited debate. E-mailers, get set, we're waiting for you to tell us who won--that debate, anyway--after the break.