NEW ORLEANS,—As the fourth federal Vioxx case gets set to go to court, the Plaintiffs' Steering Committee (PSC) is calling for Merck to stop its attempts to sway the jury pool. Merck has blanketed the area that is covered by the Federal Courts Eastern District of Louisiana jurisdiction with an extensive television ad campaign designed to create favorable impressions of the company during the ongoing several months prior to and during trials in the Federal Eastern District of Louisiana.
The PSC is the 13-member lawyer group formed to represent the plaintiffs in pretrial proceedings in the Vioxx Multi-District Litigations (MDL). They deal with all case-related issues, gather evidence, interview witnesses, select experts, meet with judges and opposing counsel, and develop strategy on a national basis.
“Merck’s advertising investment in the New Orleans market while trials are ongoing has been targeted from the beginning under the guise of a national campaign,” said Russ Herman, a senior partner of Herman, Herman, Katz & Cotlar, L.L.P. and the PSC’s liaison counsel. “Merck has been engaged in one of the most aggressive and expensive ad campaigns in pharmaceutical history in an attempt to vindicate a drug that was taken off the market because it was proven to cause heart attacks, strokes, and deaths.”
“Merck is not allowed to directly argue its legal case on TV. Even if they were allowed, they know that the people of New Orleans, from whom the jurors will be selected, just won’t believe ads that try to defend Vioxx,” added Mr. Herman, who lives and works in New Orleans. “So Merck is going around the back door, hoping to get folks to forget about this killer drug and, instead, think a bunch of nice warm thoughts about the company that manufactures it.”
“Merck has also published on its website a mammoth whitewash effort, which is a deception just like the information Merck gave medical journals for publication regarding the drug Vioxx,” said Mr. Herman.
Concerns over the safety of Vioxx first reached the Food and Drug Administration in 2000. According to a study by the National Institute for Health Care Management, that same year Merck outspent Budweiser and Pepsi in its directto-consumer advertising of Vioxx—spending more than $160 million, the most ever for a prescription drug.
The direct-to-consumers advertising paid off for Merck as retail sales quadrupled from $329.5 million in 1999 to $1.5billion in 2000.
Since the recall of Vioxx in 2004, Merck has continued to exponentially increase its ad spending in attempts to boost its image and push its products to consumers, especially during trials. For example, from January through June 2005—just a few weeks before one Vioxx trial began in Texas—Merck spent $8.9 million on “image” ads alone, up from $4.6 million during all of 2004, according to a market research firm.
At the same time, Merck has repeatedly requested that video cameras not be allowed in the courtrooms, explaining in legal filings that broadcast coverage of the trial would “imperil” the company’s ability to find a “fair and impartial jury.”
“It will be unfortunate for the victims, as well as for our judicial system, if Merck were allowed to continue engaging in this form of sophisticated jury tampering,” said Herman. “The victims don’t have anywhere near enough money to run their own image campaigns.”
“If they did, Merck would be in a whole lot more trouble than they already are.”