January 25, 2005
HOIST:
DON’T DO THE MATH (James Surowiecki, 2005-01-17, The New Yorker)
Merck would seem to have one big thing in its favor: the company voluntarily withdrew Vioxx from the market. But while Merck executives may have hoped to persuade people that they were acting responsibly, plaintiffs’ attorneys have taken the withdrawal as an admission of guilt. Questions about Vioxx’s potential risks have been common since its introduction, six years ago, especially after a 2000 trial suggested that the drug increased the risk of heart disease. Merck did not hide these data, and beginning in 2002 the drug’s label included a warning about the possible cardiovascular risks. Some critics, however, have suggested that the company soft-pedalled the dangers. Internal company documents show that Merck employees were debating the safety of the drug for years before the recall.From a scientific perspective, this is hardly damning. The internal debates about the drug’s safety were just that—debates, with different scientists arguing for and against the drug. The simple fact that Vioxx might have risks wasn’t reason to recall it, since the drug also had an important benefit: it was less likely to cause the internal bleeding that aspirin and ibuprofen cause, and that kills thousands of people a year. And there’s no clear evidence that Merck kept selling Vioxx after it decided that the drug’s dangers outweighed its benefits.
While that kind of weighing of risk and benefit may be medically rational, in the legal arena it’s poison. Nothing infuriates juries like finding out that companies knew about dangers and then “balanced” them away. In fact, any kind of risk-benefit analysis, honest or not, is likely to get you in trouble with juries. In 1999, for instance, jurors in California ordered General Motors to pay $4.8 billion to people who were injured when the gas tank in their 1979 Chevrolet Malibu caught fire. The jurors made it plain that they did so because G.M. engineers had calculated how much it would cost to move the gas tank (which might have made the car safer). Viscusi has shown that people are inclined to award heftier punitive damages against a company that had performed a risk analysis before selling a product than a company that didn’t bother to. Even if the company puts a very high value on each life, the fact that it has weighed costs against benefits is, in itself, reprehensible. “We’re just numbers, I feel, to them” is how a juror in the G.M. case put it. “Statistics. That’s something that is wrong.”
In everyday life, of course, we’re always making trade-offs between safety and things like cost or convenience. There’s not a car on the road that couldn’t be made safer, if you didn’t care about looks, mileage, cost, and so on. It’s just that the trade-offs we make are seldom explicit: we don’t tell ourselves that a sixty-five-mile-an-hour speed limit means a certain number of extra deaths, that buying this car instead of that car will affect our life expectancy—and, as individuals, we often don’t see the costs. In the courtroom, the calculations can be seen in all their cold rationality, and the costs are vividly embodied. Before a jury, then, a firm is better off being ignorant than informed.
Obviously, there’s something wrong with a system that discourages the careful weighing of costs against benefits—we want companies to learn as much as they can about the downsides of their products. But companies like Merck, which spend hundreds of millions on ads targeting consumers, have themselves to blame, too. Instead of getting people to think about drugs in terms of costs and benefits, these ads encourage people to think of medicine in the same way they think of other consumer goods. It would be one thing if Merck had marketed Vioxx only to people who really needed it—people who couldn’t take ibuprofen or aspirin safely. Instead, the company marketed it aggressively to everyone, so that some twenty million Americans had Vioxx prescriptions. That’s why the potential damages against Merck are so vast. If juries have a hard time accepting a risk-benefit trade-off when it comes to drugs, it’s in part because the drug companies have convinced them that no such trade-off has to be made.
Pharma should be treated like tobacco and banned from advertising. Posted by Orrin Judd at January 25, 2005 6:42 AM
There is no one on the Web with whom I so often passionately agree, and with whom I so often passionately disagree.
Ban advertising? Er... First Amendment? It's not up to you, or any politician, to dictate who is allowed to speak and who's not.
I swear, long as I've been reading you here, I've yet to figure out what, exactly, guides your ideology. You need to scribble up a manifesto or mission statement or something, so that the rest of us can follow your internal, uh, logic.
(Notice the most important part, though: I'm still reading!)
Semolina:
Commercial speech isn't protected and where it causes damage to society should be limited.
Posted by: oj at January 25, 2005 10:41 AM"Commercial speech isn't protected ..."
That's not an adequate response. That commercial speech is unprotected doesn't mean that should be the case.
Abortion is protected by law to an extent. Does that mean you would support further attempts to protect it?
The second part of your response is more relevant, though I disagree with the conclusion. Such words as "damage" and "society" are far too vague to have any usefulness in a country where liberty and individual rights are supposed to hold sway.
Posted by: Semolina at January 25, 2005 10:55 AMCommericial speech is unquestionably protected under the First Amendment, according to the Supreme Court, and I am sure I never read a carve out in the text of the First or Fourteenth Amendments. Anyway, all real speech is commercial (the distinction is peculiarly socialistic, as if a newspaper article on drugs is somehow 'better' or more protectable than information provided by a manufacturer.) Both the newspaper and the manufacturer want to make money. All free speech potentially causes damage to society. Pharm advertising also provides a benefit for society.
The real problem here is mismeasurement of risks and benefits by the FDA and court system. We all know about the ten people who are hurt by a drugs side effects, but we ignore the 1000 people who die or suffer because life saving or otherwise effective drugs are delayed or not produced because of expensive regulatory processes and non-productive behavior that is intended to avoid costly products liability suits.
The problem is the tort system, not free speech.
Posted by: Kevin Bowman at January 25, 2005 11:09 AMThe Constitution creates a political regime--it protects political speech.
Posted by: oj at January 25, 2005 11:46 AMThe First Amendment assigns to the states the power to regulate all speech, in any way they wish. To go on from that point is to accede to the dictatorship of the judiciary.
Posted by: David Cohen at January 25, 2005 12:13 PMMr. Judd;
Hmmm. I don't see that narrowing of the 1st Admendment in my copy of the Constitution.
I'd also love to see your criteria for distinguishing commercial speech from non-commercial.
Posted by: Annoying Old Guy at January 25, 2005 2:32 PMOh, that's easy. Cigarette ads are commercial speech. Stripping on Howard Stern is political expression.
Posted by: joe shropshire at January 25, 2005 3:49 PMAOG:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Posted by: oj at January 25, 2005 5:13 PMOK, yep, so there's the reason they ordained and established the Constitution.
But nothing inside the rest of said Constitution -- all that stuff about, ya know, what government CAN'T DO -- implies a federal right to restrict speech.
There's nothing vague about the words "Congress shall make no law..." There is, however, plenty that's vague about arbitrary definitions for stuff like "commercial speech" and "damage" and "society."
That's why we're supposed to adhere to the "Congress shall make no law" part, and not sit around trying to concoct definitions for stuff like "commercial speech" and "damage" and "society" as suits some coalition-or-another during some era-or-another.
Democracy and politics are easy, even fun, to get all wrapped up in, because they provide a continuous source of real-life entertainment. They are not, however, America's leading light. America's leading light is liberty, and is explicitly protected from tinkering by democracy and politics.
"There oughta be a law" is the antithesis of the American spirit. Liberty is to be protected at all costs, even if that cost is Orrin Judd's anger over a medicine salesman employing his freedom of speech.
He doesn't have freedom of speech--why do you think he reads you all the side effects?
Posted by: oj at January 25, 2005 8:52 PM"...why do you think he reads you all the side effects?"
Because, to refer back to my above post, his liberty has been infringed, tinkered with by democracy and politics.
You're talking about what is. I'm talking about what ought (and, to be precise, what was).
Ought? Then you need a different regime. Our Constitution has never allowed what you want.
Posted by: oj at January 25, 2005 10:42 PMIf I understand the case law correctly, advertising your opposition to a canditate in an election within 60 days thereof, unless you are the MSM, is prohibitted commercial speech. Burning a flag or dancing naked on a bar are protected political speech.
The real problem here is that the jury sytem which wokred tolerbly well for horse and buggy collisions is hopless at dealing with these types of cases. The authors point is that Jurors are swayed by trial lawyers tring to make rational thought look sinister.
There is no straight line connection between Vioxx and heart attacks, and that is a real problem. Vioxx increased the risk of heart attack, but that is a long way from saying it caused the attack.
I would submitt that the tort system is about the worst possible way to solve the Vioxx problem. Merck should be punished, if it did wrong, people who suffered unecssarilly should be compensated, but not win the lottery. No lawyer should buy an airplane.
Posted by: Robert Schwartz at January 26, 2005 1:56 AMTo David Cohen:
Yes, you are right that the First Amendment by its plain terms did not apply to the states (although its odd to say it gave states power; state police power existed before the Constitution, and exists in each state as a result of state constitutions and the recognized powers of a sovereign). But, the Fourteenth Amendment applies to states and all the rights in the bill of rights are extended to citizens vis-a-vis their own state governments through that amendment. I realize that this interpretation results from judicial interpretation (which is bad, apparently), but it is also consonant with the plain language of the amendment and the intentions of the drafters. Early evisceration of the "privileges and immunities" clause was also the product of judicial activism of a sort. In any event, nearly every state constitution has an identical right, and all would if the right were not universally recognized.
Posted by: Kevin Bowman at January 26, 2005 10:51 AMNor does it apply to companies.
Posted by: oj at January 26, 2005 11:52 AMI wrote: "You're talking about what is. I'm talking about what ought (and, to be precise, what was)."
Orrin responded: "Ought? Then you need a different regime. Our Constitution has never allowed what you want."
We're talking past each other, I think. When I refer to what "ought to be," I'm saying we OUGHT to be adhering to the Constitution as it was written and intended.
America has stopped adhering to the Constitution as it was written. Thus, when you talk about limitations on commercial speech, you're talking about what IS. And what IS is not the way it OUGHT to be.
The Constitution did not ban any form of speech. Politicians and judges did that later. We OUGHT to go back to the way things were before those politicians and judges tinkered with everything.
Posted by: Semolina at January 26, 2005 12:52 PMThe Constitution never was intended to allow non-citizens to say whatever they want.
Posted by: oj at January 26, 2005 1:36 PM