Woman with AIDS Wins Defamation Suit Against Merck Over Misleading Drug Ad
A woman with AIDS whose photograph was used in a marketing brochure for Merck & Co.'s protease inhibitor Crixivan without her permission on June 13 won a summary judgment in a defamation and civil rights lawsuit against the company, the New York Times reports. Justice Mary Werner of New York Supreme Court in Manhattan ruled that the woman, who was not identified, was defamed by Merck and its advertising company, Harrison & Star, after they used her photograph on a marketing brochure that depicted her as a 19-year-old mother of two who had contracted HIV and herpes though "sexua[l] promiscu[ity]." In fact,the woman is a suburban housewife in her mid-30s who does not have herpes and contracted HIV from her husband. In 1996, the woman was recruited and paid by Merck to have her picture taken, but she signed a waiver consenting to have her image used "only for educational purposes." Her picture first appeared in a Merck educational brochure titled "Getting the Facts." But the Times reports that her image also appeared in a 1997 Crixivan marketing brochure. In the ruling, Werner said that Merck acted with "actual malice" because the "record establishes that the brochure was published with the knowledge of the text's falsity." Werner rejected Merck's argument that the brochure was "substantially true," and that the signed waiver removed their liability. The woman's lawyer, Meredith Braxton, said, "The case is obviously important to our client because it vindicates her and gives her a measure of satisfaction for all the damage and the pain that was caused to her. The broader message that is important about this case is that big companies cannot play with the rights of individuals with impunity." Merck spokesperson Gregory Reaves said that the company "certainly would not comment on pending litigation." The case now moves to a jury hearing to decide punitive and compensatory damages. Braxton said that the woman will ask for punitive damages of $56 million, or about 10% of Crixivan's 1997 gross revenue, and $16 million in compensatory damages. The Times reports that as of Friday, the woman's picture was still being used in an Merck online ad for care providers, despite the company's pledge to remove the ad at the beginning of the trial in 1998. Informed of Web page, Braxton said she would ask the court today for an order to remove the ad (Blair, New York Times, 6/23).This is part of the KHN Morning Briefing, a summary of health policy coverage from major news organizations. Sign up for an email subscription.