Milanda Rout | April 24, 2009
THERE are two battles being waged in the case between Graeme Peterson and international pharmaceutical giant Merck & Co over whether its anti-arthritis drug Vioxx caused his heart attack.
One is being fought in the Federal Court, with barristers and solicitors for both sides arguing their case in front of a judge.
The other is much less visible - the public relations war being waged by the drug company to minimise the negative publicity.
It is a battle where a hired crisis management team sits in court every day, under the guidance of Merck & Co's media spokeswoman flown out from the US, watching what journalists write, who they talk to and where they go in the court breaks.
The team from prominent media relations firm Kreab & Gavin Anderson follow journalists out of court, ask them what they are writing, hand out daily press releases and send "background" emails they say should not be attributed to the company but which detail what they think are the "salient points" from the evidence presented in court.
"We've had decades of experience helping clients on complex and contentious issues so they can win outside the courthouse as well as inside," boasts the Kreab & Gavin Anderson website.
The team rings reporters first thing in the morning, accuses them of "cherry-picking" the evidence and bombards newspapers with letters to the editor arguing their case in detail based on the day's evidence - five were sent to The Australian in just seven days.
Last night, The Australian received a sixth letter - signed by Colin Loveday, a partner from Merck's law firm, Clayton Utz.
Spinning a potentially damaging story is nothing new. Press secretaries do it every day in the corridors of power while prominent organisations from finance companies to football clubs seek to massage their public image when faced with a crisis.
The difference in the wood-panelled hearing rooms of the Federal Court, where evidence is carefully weighed and judged, is there is nothing to spin. Journalists simply report information as it is presented to the court.
"This is highly unusual conduct," said top Melbourne barrister David Galbally QC. "That is just extraordinary. I have never heard of a party trying to get their case out in the media before there is any of their evidence (in court) and while the case is going."
The team from Kreab & Gavin Anderson includes Nick Maher, a former press secretary for former Victorian premier Jeff Kennett, and Michael van Maanen, a former ASIC media adviser.
Either one or both of them are in the Federal Court every day the case sits, along with Casey Stavropoulos, a US-based spokeswoman for Merck & Co.
For the past four weeks, journalists have been reporting on the class action against Merck & Co and its Australian subsidiary Merck Sharp & Dohme.
So far, only the plaintiffs' case has been presented. The evidence is tendered as written submissions, with hundreds of documents and witness statements now making up the case against the drug company.
Merck & Co's involvement so far has been limited to cross-examining witnesses and making legal objections.
Lawyers for lead plaintiff Mr Peterson - along with more than 1000 other Australians - allege Merck & Co knew Vioxx increased the risk of heart attacks long before it voluntarily withdrew the drug from the market in 2004. At the height of its popularity, the drug was used by more than 80 million people after it was launched in the US in 1999.
Despite settling thousands oflawsuits in the US for $US4.85billion, the company did not admit liability, and it is fighting the case in Australia.
The Federal Court has heard allegations that Merck wanted to "neutralise" doctors who were critical of Vioxx and sales representatives were trained to instruct doctors that the concerns over heart attacks were a "myth".
The defence has not presented its case or any evidence. That will come later in the trial, which is expected to run for three months. However, that has not stopped the team from Kreab & Gavin Anderson running its own case beyond the courtroom.
At the end of a day's evidence, they have emailed press releases or "background" statements to journalists covering the case to make sure the evidence is seen in "context".
This is despite journalists being generally restricted to reporting court proceedings.
In the first week of the case, Mr van Maanen and another of his colleagues issued press releases commenting on the plaintiff's evidence before the court and saying that they "believe the evidence will show that the companies acted responsibly".
The release was attributed to Clayton Utz's Colin Loveday.
As Merck & Co was confronted with a series of adverse headlines, the PR tactics shifted from media releases to "background" statements.
"For your background as you deem appropriate, attached are what we consider to be some of the salient points to have emerged during today's cross-examination of Professor Donovan regarding his written testimony," Mr van Maanen wrote on April 16.
"Of course, myself or Colin would be more than happy to discuss any aspects of the attached with you at a convenient time."
Another one was issued this week after journalists were given access to internal Merck emails tendered by the plaintiffs.
"The following is provided for your background only, and is not for attribution to a company spokesperson," wrote Mr van Maanen in an email about a document tendered that day.
"Please let us know if we can offer any additional context regarding current testimony and-or documents tendered as court evidence."
When asked to explain Kreab & Gavin Anderson's role in the Merck litigation, Mr van Maanen said last night: "We were retained by the company's lawyers to liaise with journalists covering the litigation to ensure journalists had access to the evidence in court to permit fair and balanced reporting of the trial."
Mr Loveday last night told The Australian his firm had engaged Kreab & Gavin Anderson to ensure fair and balanced reporting.
He said the press statements were issued to give "some appropriate context for the reporters" and he wrote the letters to the editor to engage in a "robust debate".
Lawyers for Merck & Co initially objected to the public release of plaintiff witness statements in the case. They later removed their objection. It is standard practice for law firms to employ media relations professionals. Part of their job is to answer questions journalist have about a case. This can be especially helpful in cases such as the Vioxx litigation, where much of the evidence is highly technical and laden with jargon. However, this does not extend to offering a rebuttal of evidence. Lawyers for the plaintiff, Slater and Gordon, have a full-time media liaison officer, Andrew Taylor. He has been in court occasionally. He has not issued press releases or statements during the trial.
This is in stark contrast to the team from Merck, who have made a point of sitting near journalists during the trial. Mr van Maanen and Ms Stavropoulos all sat close to reporters - from The Australian and The Age - during the first week's proceedings.
At one point, they were spotted looking over the shoulders of journalists at their notepads.
In one instance, on April 17, the press contingent in court was effectively surrounded. Mr Maher sat in front of the reporters, Ms Stavropoulos behind and Mr van Maanen a few seats away to the right.
On another occasion, on April 2, the Federal Court media liaison officer Bruce Phillips came into the court and spoke to journalists about document access. The conversation was keenly watched by the Merck PR team until he left the court.
He was then followed out and asked by Mr van Maanen whether he worked for the court.
On the same day, Merck's efforts to monitor journalists bordered on the absurd - one of their team was seen to follow me out of court as I left for a toilet break.
Mr van Maanen also pursued journalists out of court at the end of one day's hearings, handing us a press release as we walked out the front door. Another time, he casually asked: "Are you going to write anything?"
