Networks Send Plaintiffs Message to Drugmakers

Networks Send Plaintiffs Message to Drugmakers
Media continue lopsided coverage of litigation in Vioxx verdict.

By Amy Menefee
August 24, 2005

     Carol Ernst has received plenty of help in sending her message to drug companies. Network coverage of her jury award in the first Vioxx liability case showed the media strongly favoring the plaintiffs perspective. Critics of Merck & Co. Inc., appeared in 15 out of 16 stories, while Merck defenders appeared in only nine a trend in litigation coverage documented in a previous Business & Media Institute study.

     On August 19, a Texas jury awarded $253 million to Ernst, the widow of a patient who took the painkiller Vioxx. The jury was supposed to determine whether taking the drug contributed to her husbands death, but network coverage of the trial from August 19 to August 22 focused on the punishment of the drug company and the message behind the verdict. Ernst and her lawyer received far more favorable treatment.

     Out of 16 stories broadcast on CBS, ABC and NBC news shows during that time period, an overwhelming majority (94 percent) included sources supporting the plaintiffs case. Only 56 percent gave air time to someone taking the defendants side, and two-thirds of those consisted of a mere one or two sentences from a Merck lawyer.

     Only four stories included the important fact that the jurys award was wildly overstated a Texas cap on punitive damages should reduce it by at least $220 million if the verdict stands, reports agreed. But even the remaining award bears scrutiny. As law Professor Richard A. Epstein asked in the August 22 Wall Street Journal, where do $25 million in actual damages come from?

     Rather than address that question, journalists accepted the critics reasoning for the multimillion-dollar judgment: that Merck had made money off Vioxx and therefore should be made to pay up. On the August 20 Good Morning America, plaintiffs attorney Mark Lanier told ABCs Kate Snow, $229 million is the amount of money Merck said it could save if it put off warning in its labels for four months, that their drug causes heart attacks.

     Snow voiced the common thread throughout the stories when she said, I understand that that number, that punitive number, punishment to Merck, was symbolic in a way. She went on to ask Ernst, Carol, what message do you hope that this sends to all the drug companies, not just to Merck?

     The August 20 Early Show on CBS was one of few programs that gave the defendant a chance to give the other side. It included not just the plaintiff but Mercks senior vice president, Kenneth Frazier. Frazier was given time to state his case, during which he said, Whenever theres a claim that a drug caused a persons death, that has to be determined on the basis of sound, reliable, scientific principles, and that simply did not happen in this case.

     Even The New York Times August 23 editorial page acknowledged that the verdict was based on an extremely flimsy scientific basis for holding Vioxx responsible, but this case was less about science than about punishing Merck for what jurors considered an egregious history of covering up evidence of risk while promoting the drug so heavily to consumers.

     Despite that flimsy basis for the case, none of the stories specifically referred to tort reform, though about a third (5 of 16) acknowledged that high-dollar damages could have a chilling effect on future drug research and development, as ABCs Elizabeth Vargas put it on the August 19 World News Tonight. CBSs Anthony Mason commented on the August 19 Evening News that Merck could face the edge of bankruptcy if damages from the 4,200 pending Vioxx-related lawsuits reached into the billions.

     ABCs Lisa Stark was correct when she said on the August 19 World News Tonight that all drugs do have side effects and their concerns are with big verdicts like this, drug companies might be very reluctant to bring out a new drug, because of its side effects, reluctant because they may end up facing legal action down the road.

     But despite these serious implications for businesses, patients and the legal system, many journalists were busy asking questions like CBSs Mitchell interviewing jurors: What, in fact, were you trying to say in this case? and Do you think they heard you?