Pharmaceutical Controversies and the Performative Value of Uncertainty

Abstract

Abstract In September 2004, the global pharmaceutical manufacturer Merck & Co. removed Vioxx from the US market. The company soon faced almost 30,000 lawsuits over the alleged concealment of adverse effects. Despite suspicions that the Vioxx scandal would cripple the company's profitability, Merck's shares more than doubled between 2005 and 2007. Drawing on this case, I describe how scientific uncertainty surrounding the effects of Vioxx has been legally useful for Merck executives in exonerating their culpability for failing to disclose the adverse effects of the drugs. Extrapolating from this, I suggest uncertainty is generative and performative: it creates a demand for resolutions to the ambiguity it perpetuates, often strengthening the authority of those who have advanced a position of uncertainty to begin with. Finally, I argue paying more attention to the value of 'capitalized uncertainty' helps to nuance earlier work on the manufacture of risk and uncertainty. Keywords: Capitalized uncertaintystrategic ignorancepharmaceutical controversiesproduct liability cases Acknowledgements Thanks to Chris Hamilton, Filippa Lentzos, Martyn Pickersgill, Nikolas Rose, Ayo Wahlberg, Catherine Will and Scott Vrecko for comments during the course of writing. The author is grateful for the comments of an anonymous reviewer. Notes Merck & Co. is the full name of Merck, something I note to distinguish Merck from Merck Serono, an international pharmaceutical company based in Geneva. I introduce the term 'capitalized uncertainty' to distinguish it from 'manufactured uncertainty', a term used by David Michaels. Though Michaels' work is seminal in this area, it implies a problematic distinction between 'real' uncertainty and 'constructed' uncertainty. My aim is to reject such a distinction, and to shed light on the ways that all situations have a degree of inherent scientific uncertainty: the difference is that in some cases that uncertainty is strategically harnessed by various parties. Uncertainty is not manufactured: it is emphasized, fomented, mobilized and capitalized as a financial or political resource. For example, Thrift's Knowing Capitalism illuminates the financial value of uncertainty, where managers and investors are increasingly beginning to 'use their fear of uncertainty as a resource' (Thrift, Citation2005, p. x), while Massumi has explored the political value of conditionality during pre-emptive strikes against terrorism: 'As Bush and many members of his administration have repeatedly argued, Saddam Hussein could have had weapons of mass destruction and that if he had them, he would have used them. Could have, would have, if: the potential nature of the threat requires a conditional logic. A conditional statement cannot be wrong' (Massumi, Citation2007, p. 9). On this point, see in particular Zaloom's exploration of the way financial traders in futures markets negotiate economic uncertainties for profit (Zaloom, Citation2004) and work by Cooper, who has identified the emergence of what she calls the 'venture capital' model of pre-emptive security, where the strategic goal is 'no longer to protect the present from the future, but to respond pre-emptively to the unpredictable risk, even if this means willing it to happen' (Cooper, Citation2004, p. 13, emphasis in original). In my effort to treat both risk and uncertainty as productive, it could be argued I am conflating Frank Knight's distinction between risk, which he denotes as measurable uncertainties, and uncertainty, which he denotes as unmeasurable phenomena which cannot be subjected to knowable probabilities (Knight, 1921, pp. 198–233). The problem, as Zaloom has noted, is that a rigid analytic distinction between risk and uncertainty does not hold up under analyses of risk-taking behaviour, such as financial speculation, in practice. In the case of Vioxx, the question of what constitutes a risk to patients, and whether that risk can be attributed to the drug or to the patient's physiology, is itself a 'known unknown' generating much legally useful uncertainty. There is an extensive literature which points out that the funding relationship between the pharmaceutical industry and government agencies such as the FDA and its UK equivalent, the Medicines and Healthcare Products Regulatory Agency, often constrains the independence of regulators. See in particular work by Abraham. Stock quotes taken from www.moneycentral.msn.com, last accessed November 2007.