As reported in yesterday’s Wall Street Journal (“Merck Loss Jolts Drug Giant, Industry“; 8/22/2005). the jurors in the first Vioxx liability case dismissed the scientific evidence presented by Merck in short order:

Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.”

Matthew Holt over at The Health Care Blog, quotes extensively from this article (WSJ on how Merck lost).

In a previous post (“Jury as Focus Group“), I listed 3 messages from the Texas jury that the pharmaceutical industry should get and listen to. Today, I add one more:

Message #4: Don’t bury us in scientific/medical jargon. Make it easy for consumers to understand the facts.

But, as I pointed out above, the science was actually beside the point as far as this jury was concerned. They felt that Merck lied or held back important information and did so to protect sales (Merck was incriminated by its own memos!). Someone has to be held accountable for that — this is the main takeaway.

Merck will base its appeal on the science (see “Merck to Appeal Verdict in Texas VIOXX Product Liability Case“) and may even win the appeal. The appeal, I assume, is made before a judge, not a jury of citizens or customers of Merck. Judges are more easily convinced by the facts, but not too representative of the public at large.

Pharma Taking Its Marbles Elsewhere?
In light of the judgment against Merck, Pharma execs are beginning to complain that developing drugs for primary care may be too risky. At first, I thought they were listening to their lawyers, but now I believe this is a veiled threat to every patient out there: “Just remember, vote against us and we’ll take our marbles elsewhere. Then where will you be?”

This issue is currently under discussion on the Pharma Marketing Online Discussion Forum and I’d like to quote from a post by Terry Nugent, VP of marketing at a medical marketing agency, who offers another viewpoint:

Vioxx is a tragedy that exposes the dangers of the conflicting pressures on health care professionals in pharma and elsewhere between profits and patients. One can argue that the benefit in this case did not outweigh the risk, particularly in the patient population not at risk for GI bleed from aspirin and especially in the subset thereof with CV risk.

As you say, John what killed Merck here was recalcitrance in disclosing the CV risk. However, in the real world companies are faced with hard choices on this every day. No one wants a black box if they can avoid it because it’s a tombstone for the product. The nightmare scenario is that lack of same can be a tombstone for patients and in this case possibly for the company itself.

In the airline industry they use the term graveyard engineering, meaning that known safety risks become priorities only after fatal crashes. The same is true in many fields, e.g., homeland security post 9/11. I think Vioxx is one of those watershed events. Companies will shy away from primary care blockbusters to focus on specialty areas where the rewards of innovation clearly outweigh the risks. Ethics have replaced marketing prowess as the most admired company characteristic according to Pharmaceutical Executive magazine. In the end, the industry may be better for it, but it will certainly be much different than the one we have known for the past 20 years or so.

I would say in response that the Pharmaceutical/health industry is DIFFERENT than these other industries. I can choose not to fly, but it is more difficult to choose not to treat my medical conditions. It’s practically a maxim that marketing drugs is different than marketing toothpaste or vacations.

Remember Merck’s former CEO George W. Merck who said: “We try never to forget that medicine is for the people. Not for the profits. The profits follow, and if we have remembered that, they have never failed to appear.”