Chicago Injury Blawg post on Vioxx

Chicago injury blawg, http://www.chicagoinjurylawblog.com/vioxx-98-vioxx-verdict-is-justice-not-a-jackpot.html, has an interesting post on the punitive (or lack of punitive) effect of the Vioxx decision on Merck. In this post, William Pintas, a injury attorney, reports that the the Vioxx award is far from a jackpot award. He states that due to tort reform in Texas, the award will be reduced to around $1.6 million. He says that this amount is equal to about a $30 fine for the average household.

However, the direct effect of the award of $1.6 million on Merck is even LESS than a $30 ticket on an average household!

As economists we are asked to do these types of punitive damage analyses all the time. Based on Merck’s 2004 earnings of about $17 billion a year, the $1.6 million fine on Merck is equal to about a fine of about $3.17 for a household earning $35,000 a year. So all else equal, the punitive effect is even less.

Daubert Watch

Dauberttacker.com reported on an interesting Daubert challenge involving the expert witness fees of a expert who had been 'Dauberted' out of the case. In this case, the defendant who apparently was successful on their defense of the claims, attempted to get the court to award expert witness fees for the services of their banking expert. (click here for the complaint and jury verdict)

The court stated:

To require a party to pay for the costs of a witness who was not even called, and against whom the court had sustained a Daubert challenge was manifestly unjust. No fees were awarded as to [The Plaintiff].

Furthermore the court stated, in this banking case, 'the court declined to award defendant expert witness fees for the services of their expert...At the Daubert hearing on June 1, 2005, the court had stated that his testimony did not meet the reliability factors for expert testimony listed in Fed. R. Evid. 702, and discussed in Kumho. The court also stated that, absent the provision of some additional authority by defendant Penland, [Plaintiff]'s testimony would go beyond courts ruling on the limitations of the inpari delicto defense. '

An attorney's view on selecting Daubert proof experts

Evan Schaeffer, an attorney at Schaefeer and Lamere in Godfrey, Illinois, and the blawger of The legal underground, blawgcast.com, and Illinois Trial Practice offers about 9 great tips on selecting expert witnesses that should survive a Daubert related challenges of their qualifications. The tips are based on paper presented by Vance Andrus, Richard Arsenault, and Donald Marks, M.D., at a Mealey's litigation conference. Some of the tips however will need to be adjusted for non-medical experts.

For instance, one of the tips found on the post, suggests that the attorney should look for experts who have written on the precise topic involved in the case. However, in the economic damage realm it is relatively rare for economists to actually write or publish articles on the precise damage issue that is involved in the case.