Pharma marketing practices came in for withering questioning at the first Vioxx product liability trial this week, as jurors in the box (and those at home watching the box) heard Merck's sales tactics cast in a lurid light.
The infamous "dodgeball" exercises, in which reps were schooled to sidestep physician concerns about cardiovascular issues, were rehashed. Jurors heard allegations that Merck intimidated scientists and kept a blacklist of doctors who questioned the safety of Vioxx.
"The key issue in this trial is causation," said David Price, an attorney with the healthcare law practice of the Washington Legal Foundation. "This discussion of marketing issues is ultimately a sideshow if the plaintiff's attorney can't show that Vioxx injured the plaintiff. That being said, there will obviously be memoranda that will come out that could be portrayed in a negative light. In a trial like this that's the focus of a lot of attention, that's not helpful for the
Proving that Vioxx killed Robert Earnst, and not some unrelated heart arrythmia, as Merck contends, would seem a tall order even if true.
However, Merck could have a hard time winning the hearts and minds of jurors. Communications counselors said the contrast between Merck's chilly, buttoned-down corporate lawyers and the colorful trial lawyer W. Mark Lanier would do Merck no favors.
The small town of Angleton, Texas, where the trial is being held, is 45 miles south of downtown Houston, in a district known as a plaintiff-friendly jurisdiction, and the jury is largely blue-collar. The trial comes at a time when Americans, buffeted by a series of corporate scandals and angry about drug prices, are growing more distrustful of businesses in general and Big Pharma in particular.
However, Alan Hilburg, head of Porter Novelli Consulting, which specializes in litigation communications, said Merck is making all the right moves."Left unmanaged, litigation can have a serious adverse impact on the entire industry," said Hilburg. "They understand the implications
and they are handling every aspect of the case in textbook fashion."
Hilburg said companies facing product liability claims must field knowledgeable spokespersons and competent communications staff, being careful to communicate to all stakeholders, including employees, customers and physicians often and thoroughly. Merck's star witness, epidemiology
head Dr. Nancy Santanelli, he said, has acquitted herself well, said Hilburg."You can trust
her, and in these kind of trials, it's all about who does the jury trust."