Damages and Double Jeopardy

I saw the other day that Merck lost another Vioxx trial, with the jury awarding $4.5 million to a man who had a heart attack after taking Vioxx.  I won't get into my problems with this type of litigation today, but I did in many other posts like this one (and this and this).

My question today revolves around the fact that this trial is now going into the punitive damages phase, where the jury will decide if Merck owes more money as a punishment not narrowly for this man's heart attack (for which they are paying $4.5 million) but more generally for Merck's actions in bringing the drug to market at all.

Here's the problem:  A jury in Texas already hit Merck with $259 million in punitive damages*.  This number was based on a lot of testimony about Merck's sales and profits from Vioxx, so it was presumably aimed at punishing Merck for "errors" in their whole Vioxx program.  So if that is the case, how can Merck end up facing a jury again coming up with a separate punitive damage award for the same "crime"?  Sure, it makes sense that Merck can owe actual damages to individual claimants in trial after trial.  But how can they owe punitive damages for the whole Vioxx program over and over again?  Aren't they being punished over and over for the same misdeed, violating their Constitutional protection against double jeopardy?

I'm not sure what the solution is.  One approach, of course, would be to say that punitive damages can only be awarded once, which would effectively mean they would go to the first plaintiff to win his case.  I am not sure this makes a lot of sense from a public policy point of view, but it would be highly entertaining to watch tort lawyers knocking themselves over and maneuvering to be the first verdict, knowing that if they are first,they would get 30% of hundreds of millions of dollars but if they are second they get 30% of much much less, since punitive damages are always far larger than actual damages.

*Under Texas law, this amount will likely be reduced, but it doesn't change the fact of double jeopardy


  1. Jody:

    My solution is to remove punitive damages from private lawsuits.

    If punishment is needed, let the feds (or states) try it as a separate case.

    I don't see why any plaintiff should be rewarded for someone else's wrongdoing (compensated yes, rewarded no) and I think the levying of fines (which is what punitive damages really are) is naturally the domain of government.

    I call the current system where plaintiffs receive punitive damages "lawsuit vigilantism"

  2. ClubMedSux:

    If you want a technical answer, it's not double jeopardy because it's not a crime; it's a civil award. Of course, what that answer highlights is a bigger problem in American courts: the blurring of the line between civil and criminal justice. Traditionally, civil courts awarded financial compensation for people who have been wronged, while criminal courts punished morally reprehensible behavior (hence criminal courts required mens rea--"the guilty mind"--while civil courts did not). However, you now have civil courts awarding significant punitive damages (which run contrary to the notion of civil courts as simply making the injured party whole) while criminal courts are increasingly convicting people of "crimes" that don't require criminal intent. Personally, it seems to me that justice was better served when the civil and criminal realms were separated by their traditional distinctions.

  3. markm:

    Club: And you also have municipalities and other government agencies using civil suits instead of criminal law to avoid having to provide the defendant with a lawyer or prove their case beyond a reasonable doubt. Most egregious are the property forfeiture cases, filed against the property, rather than the owner - although everyone knows who the owner is.

    As for punitive damages in actual civil suits, my suggestion is that any money above actual damages + reasonable and proper legal fees collected goes into a fund to compensate all the other victims for actual damages only. If you collect from this fund, it is settlement in full and you cannot sue separately. The lawyers never get their hands on it - if there aren't enough actual victims to use up the fund, then obviously the amount was miscalculated and the remainder is returned to the defendant.

    This brings up another problem with the legal profession and courts: often court-appointed trustees turn out to be anything but trustworthy. Solution: make the judge really responsible for oversight. If anyone else catches the trustee dipping into the fund before the judge who appointed him does, the judge is responsible for making good any shortfall that cannot be collected from the trustee, and in egregious cases the judge may be criminally tried as an accomplice.

  4. notafish:

    Jody, If it's the government's domain to levy fines, then I think they should be held responsible for any punitive damages as well. The FDA is supposed to prevent this kind of thing. And, other than some griping, what kind of accountability do they face? Of course government agencies can't go around suing each other, but I don't think they should levy fines on something for which there is a government agency to prevent. If they must, I like Mark's idea.

  5. phil:

    How about a government agency simultaneously filing a civil proceedure and a criminal case against the same person for exactly the same underlying act and keeping the criminal indictment a secret as the accused testifies in the civil proceedure....in Texas.