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The Risks of Bifurcation – Book Review: All the Justice Money Can Buy

Posted in Strategy

There’s a fascinating strategic story buried deep within Snigdha Prakash’s book on the early Vioxx litigation, All the Justice Money Can Buy: Corporate Greed on Trial. It’s revealed in two passages, one toward the beginning of the book, one toward the end.

At the beginning of the book (and the trial it covers), New Jersey Superior Court Judge Carol Higbee [] proposes bifurcating several upcoming Vioxx trials into two phases: a general causation phase, followed by a damages phase. As Prakash reports:

The plaintiffs embraced the proposal. Trying several cases together would give them multiple opportunities to beat Merck in a single trial. And they believed the the trial’s bifurcated structure would play to their strengths because Merck’s deceptive marketing practices and scientific misconduct would take center stage first. Merck would have to wait until the second half of the trial to call the jury’s attention to what had proven to be the strongest part of its case–how each plaintiff’s lifestyle and preexisting injuries may have contributed to the alleged injuries.

(Pages 29-30, emphasis in original.) Then, at the end of the trial, after the jury renders a verdict that precludes recovery for at least one of the plaintiffs, the plaintiffs reverse their position.

"Counsel have anything they want to say about the verdict before we move on?" [Judge Higbee] said when she was seated.

"Your Honor, Mark Lanier, on behalf of the Hermans[es]," Lanier said, standing up. "It is my request that you enter a judgment, notwithstanding the verdict on question number 1, to allow the Hermans case to continue into Phase II."

Lanier was asking the judge to set aside the ground rules that the two sides had fought over so bitterly before the trial. Under those rules, the jury was to determine if Merck was liable, in principle, for the injuries of all the plaintiffs in Phase I of the trial, and resolve each plaintiff’s specific claim against Merck in separate mini-trials in Phase II. Higbee had proposed the bifurcated structure as a way to try several cases simultaneously. The plaintiffs’ lawyers had agreed, believing that the arrangement would increase pressure on Merck to settle, while Merck had strenuously opposed it. Now, Lanier was arguing that the trial structure he earlier supported had prevented the judge from reaching "a valid verdict."

(Page 266, emphasis added.) How did the plaintiffs get from point A, where they were enthusiastic supporters of bifurcation, to point B, where they essentially argued it was grounds for reversal? (And did so unsuccessfully, as it turns out.) Was this a case of hubris? The fog of war? Malpractice?

Unfortunately, Prakash doesn’t care about these questions. They don’t fit the story she wants to tell, which is

why [Lanier] was beating Merck when others weren’t.

(Page 38.) Even more unfortunately–at least for Prakash–the trials in New Jersey that form the focus of her book don’t progress how she predicted. Instead of watching a undefeated team take on a large and evil corporate defendant in a much-anticipated rematch, she witnesses a team score at best a partial victory that feels far more like a defeat. (Even the Humestons, plaintiffs who won at Phase I, would go on to lose at Phase II, at which point Judge Higbee would overturn the jury’s verdict.)

Rather than embrace the nuances that drive complex litigation (there are rarely unsullied heroes or unambiguous villains, and even more rarely unequivocal victories), Prakash strives mightily to cram the facts in front of her into a straightforward story of good triumphing over evil, at least until the jury refuses to oblige her.

It’s clear Prakash’s model for All the Justice Money Can Buy is Jonathan Harr’s A Civil Action. Like Harr, she embeds herself with the plaintiffs. And like Harr, she aspires to be a fly on the wall. But unlike Harr, she makes no attempt at journalistic depth. She does not try to get into the heads of the defense, the judge, or the jury. And the result is decidedly one-sided. While Harr was able to tell a story of how large-scale litigation warps the lives of everyone it touches, Prakash turns a series of trial transcripts into a high-school soap, where the cool kids try to take the Honors Society down a peg, and kind of succeed, but kind of don’t. By the time she reaches the end of the trial, she is recounting a scene that could literally take place in a classroom, where a member of the trial team passes her a note mocking defense counsel and she laughs out loud, attracting the woman’s attention.  (Page 244.)

That attitude is endemic to Prakash’s book. Her verdict at the end is not that the plaintiffs made a mistake in structuring the trial as they did or presenting the evidence as they did, but that the jury made a mistake in not believing the story as the plaintiffs presented it. There are some interesting nuggets along the way–Mark Lanier is clearly a talented storyteller, and provides some worthwhile analysis on day-by-day trial presentation–but the fact that the plaintiffs appeared to make such a large blunder at either the beginning or the end of the case, and that blunder goes unexamined for the two hundred thirty pages in between, or the twenty pages afterward, mean that they’re not quite worth the slog through the shallow cheerleading that takes up the remainder of the book.