Merck Changes Tactics, Lawyers Too

In the wake of last week's verdict in the first Vioxx liability case (see Merck Found Negligent!, Jury as Focus Group, and Merck science "like wah, wah, wah"), Merck is now defending its legal strategy as well as its Vioxx marketing practices.

In an article in today's New Your Times (see "Maker of Vioxx Says Some Suits May Be Settled"), Merck's general counsel, Kenneth Frazier, "said in an interview yesterday that Merck would consider settling suits brought by people who took Vioxx for long periods of time and had few other risk factors for heart disease. Nearly 5,000 Vioxx suits have already been filed, and tens of thousands more are expected."

However, Mr. Frazier said Merck would settle only a "small fraction" of cases. Perhaps a trickle of settlements will become a floodgate if Merck loses more cases in the future.

Speaking of future cases, Merck seems a little gun shy and has asked for a delay in the next trial -- in New Jersey -- citing publicity over last week's verdict in Texas. They don't want to lose a case in the pharmaceutical capital of the world! Think of the publicity that would generate!

In the midst of all this, "Merck has already designated lawyers from other firms to handle the New Jersey and New Orleans cases."

Merck is Learning, But Are They Learning the Right Things?
In a Wall Street Article (Merck Eases Stance on Vioxx Suits), Mr. Frazier is quoted as saying: "Each time we do this, we learn and hope to sharpen our approaches" and "We are learning as we go along about how best to present evidence to juries composed of lay people."

Of course, this is the lawyer speaking, not the scientists and marketers. The latter need to learn about how best to present side effects and efficacy evidence to the general public from which juries are selected. See "Jury as Focus Group" for more lessons Merck and the entire Pharma industry should learn from the Texas trial.

Agreement from a Counterpart
Bob Erhlich, Chairman and CEO of DTC Perspectives, agrees that the industry needs to learn more about communicating risk and educating the public about the proper use of its products. Erhlich said:

For the half of you marketers out there who still have medical brief summaries, the Merck jury should scare you. The drug company lawyers who want the kitchen sink of side effects written in medical terminology so you are “protected” from liability litigation are dead wrong. A reasonable jury will want to punish companies that advertise (yes the brief summary is advertising) terms consumers cannot possibly understand.

I have alscriticizeded the package insert and "brief summary" (see "Future of Drug Print Ads") and I am happy to see that Erhlich agrees with me that "There is no excuse for being captive to company lawyers who are wrong."