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By rog12
August 22, 2005

Posts selected for this feature rarely stand alone. They are usually a part of an ongoing thread, and are out of context when presented here. The material should be read in that light. How are these posts selected? Click here to find out and nominate a post yourself!

I have followed this board with great interest for about a month. During that time I have read about a thousand posts and have been much impressed with the ability of many who post here to analyze companies. However, I have not been impressed with some of the comments made about the Texas trial. In my opinion they were not based on evidence and merely represented the bias of the writers.

Let me start with my credentials for this criticism. I'm an appellate lawyer with 45 years of experience. I have handled hundreds of appeals in state and federal courts representing both plaintiffs and defendants.

First, the damages. A recent post complained about the economic damages, stating that they were $24 million. Correction, they were $450,000, about what you might expect for a department manager at WMT. The mental anguish and loss of companionship damages were 24 million. These are always very subjective in nature and depend a great deal on the emotions created in the jurors by the trial. I don't know the Texas law, but if the trial judge thinks that they are excessive he may be able to reduce them. The 10 jurors who voted for the plaintiff must have felt that MRK acted outrageously, because they added 229 million in punitive damages. According to what I have read this must be reduced to $750,000 because of the Texas cap on punitive damages.

Now let's go to BuildMWell's post 8609 in which he approvingly referred to JrByrdmann's post 3992 on the Merck board. I have the greatest admiration for BuildMWell's invention of the BMW method and his astute security analysis. The Merck board post was not up to his high standards.

The allegation that corporations cannot defend themselves because of 40 years of brainwashing by liberals is nonsense. sckor answered this quite well in post 8621 in which he pointed out that Texas is a very conservative state. It is very unlikely that the jury was composed of 10 liberals and 2 conservatives. The area in which the trial was held has been described as semi-rural. Such areas tend to be conservative, but there is also a tendency for people to look after their own. Conservatives can feel sympathy for their neighbors. This is as good a hypothesis as the "liberal" brainwashing notion. The fact is, none of us know anything about the individual jurors, and anything we say about them is pure speculation.

I know of no evidence that attorney advertising has increased verdicts.
My experience is that attorneys who handle high profile cases don't advertise and those that do advertise settle most of their cases. I see nothing wrong in telling people that if they are injured through the fault of someone else they might be able to receive compensation. That is the law and there is no harm in telling the truth.

The assertion that the jurors were too ignorant to get out of jury duty is pure garbage. Many people, including myself, consider it a citizen's duty to serve on juries. I would like JrByrdmann to site some evidence that the Texas jurors were exceptionally ignorant. I doubt that he has any knowledge about them. If anything, his statement indicates that he is profoundly ignorant of his own biases.

The assertion that corporations can't win jury trials is incorrect, although it is often hard for them to do so. The tobacco companies were quite successful until recent years, when evidence turned up that they not only knew that tobacco was both harmful and addictive, but that they purposely made it more addictive. It can be reasonably argued that they deserved what they got.

Other corporations also get what they deserve at times. The recent misdeeds of corporate executives and Wall Street firms are too numerous to mention here. The Merck jurors heard evidence regarding both liability and corporate misdeeds that supported the plaintiff's case. Whether that evidence will hold up on appeal remains to be seen. My personal opinion from the little I have read is that the liability evidence is thin and some of it may be thrown out on appeal. However, my experience tells me that unless you sat in the court room and heard all of the evidence or read the trial transcript, examined the evidence and read the jury instructions, you cannot make an informed criticism of the jury's verdict. I have handled many cases in which, after I carefully examined the entire record, I still was not sure who was right on the facts. The triers of fact had to do something and they ruled for one side or the other. People who read brief accounts in the newspapers or heard 30 seconds worth of news on TV about the cases were in no position to criticize.

This has gone on too long. I'll end with a plea that you analyze complex cases with the same degree of care and fidelity to the evidence as you use to analyze securities.

Regards to all,

Joe


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