Paul Holmes

Merck loss in lawsuit shows that good PR is sometimes a company's best legal defense

Merck loss in lawsuit shows that good PR is sometimes a company's best legal defense

Historically, PR and legal advisers have been at odds during corporate crises, with lawyers arguing for circumspection, and PR people arguing for openness and honesty.

The results of the first Vioxx trial, which saw a jury find Merck guilty in the death of a Texas man who died of a heart attack and award his widow a massive $250 million in damages (an amount that will be reduced on appeal), should end the debate once and for all.

Merck had expected to win this particular case, and had sound legal grounds for optimism. There was little direct evidence that the victim's heart problems were caused by Vioxx: He took the drug for just eight months, and tests suggest that cardiovascular problems occur only after 18 months; and the cause of death listed on the death certificate was arrhythmia, not a heart attack (although the medical examiner testified that she thought the arrhythmia might have been caused by a heart attack).

The guilty verdict and the massive $230 million punitive damages award suggest that the jury was motivated as much by outrage at Merck's behavior as by the facts of this case. And their outrage is completely justified and a direct result of the fact that Merck appears to have put legal (and marketing) considerations ahead of PR considerations.

I believe two things that might appear contradictory. The first is that Merck was guilty of serious negligence as far as Vioxx is concerned, and the second is that the drug should not have been pulled from the market. The fact is that Vioxx - and other drugs of its type - provide much-needed relief to patients for whom many other painkillers do not work. But those patients have the right to decide for themselves whether they will assume the risk of taking a particular medication, and they were denied that right when Merck (and the Food & Drug Administration) elected not to share the results of clinical tests with patients and physicians.

Just as troubling, Merck allowed Vioxx to be prescribed to patients for whom it was not, strictly speaking, necessary. It's hard to escape the conclusion that pharmaceutical companies encourage - or at least do not actively discourage - the prescription of their blockbuster drugs to people who could easily be treated with less powerful medication. In the case of Vioxx, some patients were asking for the drug when a couple of Advil might have been just as effective. They were (unknowingly) taking a risk disproportionate to the drug's benefit.

It was a failure by Merck to communicate risk that the jury in Texas punished. The lesson is that good PR advice can sometimes provide a better legal defense than good legal advice.

  • Paul Holmes has spent the past 18 years writing about the PR business for publications including PRWeek, Inside PR, and Reputation Management. He is currently president of The Holmes Group and editor of www.holmesreport.com.

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