‘ Dodgeball’ no game for Merck in court
EXPENSIVE LANGUAGE LESSON
One word is likely to prickle
Merck and Co., Inc. for a long time: dodgeball. And every company should be warned by how a game in which children throw rubber balls at each other became such a frustration for the U.S. pharmaceuticals company.
Merck’s use of the word “dodgeball” in documents is being used as evidence against it by plaintiffs claiming injury or death from Vioxx, its pain drug.
The second trial of at least 5,000 lawsuits started in Atlantic City, N. J., last week. And verdicts against Merck — such as last month’s in the first trial in Angleton, Tex., which is likely to result in damages of US$26-million — could cost it billions.
“ Dodgeball” was a now infamous Merck sales training exercise for Vioxx, before the drug was withdrawn in October. Lawyers representing plaintiffs suing the company allege that the name reflects Merck’s intent by constructing the training package to help its salesforce duck and dodge doctors’ questions about Vioxx’s heart and stroke risks.
Merck says that is ridiculous — the name is just for fun. Kenneth Frazier, Merck’s general counsel, has said: “ The context is completely wrong. It’s part of a game. It’s an unfortunately named game, I grant you.”
There is a lesson for all companies in an increasingly litigious environment, say independent legal experts. Irrespective of Merck’s guilt or innocence, they say many companies overlook language that can cause trouble in the future.
Enron, the bankrupt energy trader, used the nickname Death Star for a strategy that manipulated the Californian electricity market. Traders at Citigroup called last year’s controversial eurozone bond trade Doctor Evil, blighting the bank when the moniker came to light. Citigroup had also previously damaged its reputation by calling a vehicle used by Parmalat, the Italian dairy group that collapsed amid an accounting scandal, Buconero, or “black hole.”
Arvin Maskin, lawyer and head of mass litigation at Weil Gotshal & Manges, says: “ There’s a lot of lessons learnt [from the Merck case]. You must ask yourself about the marketing documents created today: How would you feel about having that memo on the front page of a newspaper?”
Concern has increasingly focused on company e-mails. Their casual, colourful language can leave question marks about company motives, defence lawyers say. But they warn that old-fashioned marketing flyers or scientific memos should not be overlooked.
The Vioxx cases are a powerful reminder of this. Merck says plaintiffs are twisting the meaning of selective materials, such as its Dodgeball exercise, presenting them out of context. It strenuously denies they represent efforts to use marketing tricks to minimize dangerous side-effects, to continue increasing sales of Vioxx, which peaked at US$2.5-billion annually in 2003, amounting at one point to 11% of total revenue.
Vioxx is an anti-inflammatory pain drug from a class known as cox-2 inhibitors, often called coxibs for short. The sales hitlist was for doctors who prescribed a lot, so-called high prescribers.
Legal experts agree that scrutiny is becoming so intense that managers must instil a new discipline in internal writing or face their own dodgeball.
“[ Merck] spent all this money on how ‘ patient friendly’ they are and yet they allow [internal marketing] documents to be entitled like that. It’s kind of like whistling past the graveyard,” says Carl Tobias, law professor at the University of Richmond.
Financial Times