Issues in Tort Law
By Attorney David I. Fuchs

As trials continue against Merck, the maker of Vioxx, attorney David I. Fuchs predicts a change in verdicts from state to state, based on the political views of the jury in each jurisdiction.

In South Florida, where Fuchs practices law, juries tend to be much more conservative in their awards, even though the area is considered to be a “bastion of liberalism.”

“When you go north and west in Florida,” Fuchs said, “our verdicts tend to be more plaintiff-oriented with verdicts settling higher, even though it is a socially conservative area.”
Fuchs said he can’t explain why the trend exists in Florida, but the same phenomenon worked against Vioxx in Texas where the first trial ended last month. The Texas jury stung Merck with a $253.5 million liability verdict, a high verdict for a politically conservative state.

The judge will slash the award to about $26 million because Texas law caps punitive damages. While Merck plans to appeal, attorneys will continue to fight more than 5,000 lawsuits filed in state and federal courts. Half of the cases are in New Jersey, where Merck is located, with the rest spread across the country.

In Florida, Fuchs said juries tend to frown upon frivolous lawsuits and will punish a plaintiff who cannot prove his or her case. He said the most damaging proof for Merck was probably the internal memo. “The memorandum showed that if there was a delay in posting the drug warnings, Merck would make an extra $229 million, which is about the same amount jurors awarded the plaintiff,” Fuchs explained.
All of the cases will have this memo working against them but will affect juries differently, Fuchs said. “Even though we are dealing with a huge company that has had the type of negative publicity of Merck, some people will feel that it is somehow against their religion to hit a company for money.”
Verdicts will vary according to judge as well, said Fuchs. “We can’t pick our judge. If we could, we’d all be millionaires and wouldn’t have to practice law much longer,” Fuchs explained. “We pray it’s a judge who will give us a fair shake.”

Fuchs said that although judges are instructed to leave any subjective biases aside, they are human, and they do make mistakes.

Final Word from Fuchs:

“Two judges may interpret the law quite differently,” Fuchs said, referencing the liberal and conservative minds of the justices on the U.S. Supreme Court. “If you have a fair jury and an opened-minded, fair judge, I think Merck’s in trouble.”

About The Attorney

David I. Fuchs has been representing clients in his South Florida practice for more than eleven years. He is a member of the Florida, New York and District of Columbia Bar Associations.