Television interviews are one thing for a chief executive under fire. Answering questions from plaintiffs attorneys in pursuit of evidence is something else.
A state Superior Court judge in Atlantic County has ordered Raymond Gilmartin, Merck’s chairman and CEO, to provide pretrial testimony after lawyers for the company sought to prevent it.
The order requires Gilmartin to appear before plaintiff attorneys early next year and to answer questions about what he knew of the dangers associated with Vioxx before Merck pulled it off the market in September.
It is one of hundreds of legal tussles likely to arise as attorneys prepare to take Vioxx lawsuits to trial in New Jersey. While much of the wrangling is legal strategy, it also underscores the prickly public relations problems that result from high-profile litigation.
“Merck wants as much as possible for this not to become something that is personalized or highly visible,” Wayne Eastman, who teaches law and ethics classes at Rutgers Business School, said.
“If you have your CEO out there identified with the litigation, it’s no longer dry arguments about science and statistics,” he said. “The plaintiffs want to focus on individuals’ possible misdeeds and knowledge. The plaintiffs want it to be seen as a drama of corporate misconduct.”
Merck, which has its world headquarters in Whitehouse Station, took its top-selling pain drug off the market Sept. 30 after a study indicated patients using it faced an increased chance of strokes and heart attacks.
But the withdrawal of the drug came years after scientists first expressed concerns over the drug’s possible effects on the cardiovascular system. Meanwhile, Merck heavily promoted the medicine. Vioxx generated $2.5 billion in sales last year and now faces liability some analysts say could run $18 billion or more.
In New Jersey, Merck has been sued by hundreds of people claiming the pain medicine caused a death, a major heart attack or stroke. The volume of litigation led the state Supreme Court to designate a mass tort case last year. (Ordinary torts involve individual claims for personal injury or property damage.)
The plaintiff attorneys already have deposed a number of Merck employees and former employees. Gilmartin is one on a list of senior executives expected to be deposed.
Gilmartin, 63, has already appeared on television countless times calmly, almost stoically, explaining the company’s actions. In November, he testified to members of Congress investigating how both Merck and the Food and Drug Administration handled Vioxx.
Theodore Mayer, a lawyer representing Merck, said there was no attempt to stop Gilmartin from appearing before Congress. In litigation, however, strategy comes into play—on both sides.
“It’s not uncommon in cases like this for CEOs to be deposed. We certainly want an orderly process so the deposition is properly and carefully conducted,” Mayer said. “We look forward to every opportunity to demonstrate how Merck did the right thing every step of the way.”
Judge Carol Higbee issued the order during a regularly scheduled meeting with lawyers Dec. 16. The actual date of Gilmartin’s deposition, which will occur in closed proceedings, is still being finalized, according to attorneys on both sides.
As part of their argument, plaintiffs attorneys attached several documents, including internal memos and e-mails about presentations and meetings. “The goal was to show that Gilmartin had knowledge,” said David Buchanon, one of the plaintiff attorneys.
“They’re concerned about a special wave of publicity,” Eastman said of Merck. “They’re probably hoping that things will die down and this testimony, even while it’s supposed to be secret, could get into the press.”