Propaganda in the Courtroom: Pharma Edition

At Day on Torts:

This study in PLoS Medicine reports that, based on estimates from publicly available data, drug manufacturers probably spend more money on advertising than they do for research and development.

In the words of the study:   "From this new estimate, it appears that pharmaceutical companies spend almost twice as much on promotion as they do on R&D. These numbers clearly show how promotion predominates over R&D in the pharmaceutical industry, contrary to the industry’s claim. While the amount spent on promotion is not in itself a confirmation of Kefauver’s depiction of the pharmaceutical industry, it confirms the public image of a marketing-driven industry and provides an important argument to petition in favor of transforming the workings of the industry in the direction of more research and less promotion."

This study makes it clear that it is using estimates to reach its conclusions.  The manufacturers don’t report this data, so the authors had to take the limited available information and do what they could.  Obviously, they could be wrong.

So, why bring this to your attention?  We all remember a time when hospital ads did not appear on every seventh billboard and drug companies were absent from the print media and television.  The substance of ads from hospitals can be used in malpractice cases against those hospitals.   So to the drug company ads – and they can also be used to attack the outdated learned intermediary doctrine.  Finally, as the health and drug industries continue their assault the civil justice system on the grounds that financial responsibility is affecting their ability to offer new services and products, it is fair to demand answers to the questions of how they spend their money.   Is the public really being served by drug ads?

I have always wondered how to best deal with this problem. I think one of the greatest strengths of the jury trial system is that jurors come to the trial with their own lifetimes of experience, knowledge, and contemplation. One of the biggest drawbacks, however, is that every juror, even those who are genuinely without bias, comes to the trial with misperceptions, some so subtle that the juror would not even be able to identify them.

What do we do about these misperceptions? There is a big "pink elephant" problem: are we doing more harm when we tell the jury, for example, to ignore the effect medical malpractice lawsuits have on the availability of health care? It’s like telling someone not to think of a pink elephant: the first thing they think of, of course, is a pink elephant.

The same goes with these drug ads. Large sections of the population — probably more than the majority — have been exposed to relentless advertising to convince them that their society is significantly held back by cost of lawsuits. There is little basis for this assertion, as even the most biased studies have found that judgments cannot exceed 1-2% of GDP, which is but a fraction of the tortious and otherwise wrongful damage done throughout our society on a daily basis.

But the meme persists, and I bet nine out of 10 jurors would tell you that lawsuit against pharmaceutical companies are one of the biggest costs the companies face, while fewer than one in 10 would say that advertising is one of the biggest costs. As lawyers, the answer to "what do we do about it?" is pretty simple, as we do whatever is possible within the confines of our trial, based upon the client, the company, the story, the jurors, and the court. As for what we should do about it, that is a tougher question to tackle.

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