That was one of the comments of Richard A. Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, during this heated exchange with Merck slayer Mark Lanier on Larry Kudlow’s show over the merits of the Ernst v. Merck verdict. The debate comes on the heels of Mr. Epstein’s impassioned criticism of the Merck/Vioxx fiasco in this Opinion Journal op-ed, in which he accused Mr. Lanier of intentionally misleading the jury during the trial. Here are the previous posts on the Merck/Vioxx case.
During the interview, Mr. Lanier resorts to throwing mud at Professor Epstein as his main argument, but the following exchange comes closest to a substantive exchange of positions:
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.
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.
Hat tip to Walter Olson over at PointofLaw.com for the link to the Epstein-Lanier debate.
Lanier caught Epstein in the U. of Chicago argument that in things medical, benefits should be weighed against liabilities, and let the market decide. Merck followed the “Greed is Good” premise of phamaceutical development/marketing, and got caught by the jury. Increasingly, we’re seeing the pharmaceuticals daring trial lawyers to “make their day,” what with the GOP given to libertine markets. Vioxx is just another way of saying “We’re not sorry!”
“If we can put off warning for just four months, we’ll make an extra $229 million.”
… and if there’s no way to make reliable pharmaceuticals than relying on tactics like this, then the entire industry has some rethinking to do.
Richard Epstein v. Mark Lanier
“You’re a bully, Mr. Lanier, and you’re not going to get away with it now.” On the Larry Kudlow show, the two get into a heated debate on the merits of Ernst v. Merck (via the U. Chicago Law front…