Internet Comments Play Starring Role in Vytorin Lawsuit

February 11, 2009 02:04 PM
by Cara McDonough
Drug producers want a judge to disregard negative comments made on a Web site for pharmaceutical sales representatives. Are online comments fair game in the courtroom?

Drugmakers Want Anonymous CafePharma Complaints Disallowed

Schering-Plough Corp. and Merck & Co., which together produce the cholesterol drug Vytorin, have called CafePharma a “repulsive, offensive and obscene” Web site.

Their remarks follow a lawsuit filed by investors for securities fraud, saying that the companies did not disclose test results showing that Vytorin does not unclog arteries any better than an older, less expensive drug. The suit contained postings from CafePharma.

According to Bloomberg, the comments relate to the fact that the companies knew there were problems with the tests and did not make them public. The posts were “very detailed,” said Sean Coffey, a lawyer for the investors.

But the companies wrote in their request to U.S. District Judge Dennis Cavanaugh that “CafePharma is, literally, the cyberspace equivalent of scrawls left on a men’s room wall.”

The case has added fuel to an already smoldering debate regarding the Internet’s role in the courtroom, as several recent lawsuits have centered on comments made online.

A San Francisco Chronicle article published earlier this week explores the issue of the power the Internet has bestowed upon the masses, stating, “as defamation lawsuits have begun to mount, some are questioning the wisdom of the crowds.”

San Francisco resident Christopher Norberg is currently facing a defamation lawsuit after posting a negative review of a chiropractic business on the consumer-review Web site Yelp. In the review, Norberg claimed that the doctor he saw was dishonest following a bill dispute.

Eric Nordskog, attorney for chiropractor Steven Biegel, said his client does not oppose people expressing opinions online, but “there is a line where if someone … publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words.”

Gossip Web site Juicy Campus, for example, recently shut down; the site claimed the move was due to the bad economy, but last year a University of Delaware student sued the site when she wanted gossip about herself taken down.

The Chronicle also cites another Yelp incident that occurred when Foster City, Calif., dentist Yvonne Wong recently sued Los Altos couple Tai Jing and Jia Ma after they posted negative comments about her on the site, questioning her use of laughing gas and claiming that her fillings contained mercury.

Cafepharma representatives have not yet spoken to the media. Schering-Plough Corp. and Merck & Co. say the site is well known for “wild misinformation and speculation.” A spokesman for the companies said they believe the comments have “no place in legal proceedings.”

Background: The Vytorin question

In Jan. 2008, the two pharmaceutical companies did publically admit that a two-year study found Vytorin—made up of two older drugs, Zetia and Zocor—cleared plaque from arteries no better than Zocor alone. Investors claim that the results should have been released sooner.
The news wasn’t the only negative press the cholesterol drug has received. In August, the U.S. Food and Drug Administration announced that it would begin investigating a possible cancer link with the drug.

Clinical trial results released in July showed that, in a study of more than 1,800 people, 93 people who took Vytorin developed cancer, compared with 65 in a control group. Two other studies, however, indicated no link, and some researchers claimed the cancer finding was most likely an anomaly.

The cancer study came on the heels of another clinical trial that showed that Vytorin failed to improve a heart valve condition called aortic stenosis, which, if left untreated, can lead to serious heart problems.

Related Topic: The Whole Foods commenting scandal

In the summer of 2007, Whole Foods CEO John Mackey found himself in hot water after he was outed as “Rahodeb,” a poster on Yahoo Finance message boards who had been touting Whole Foods stock and criticizing the company’s rivals, including grocery store chain Wild Oats.

His actions were uncovered as Whole Foods was looking to acquire another company, and caused analysts and legal professionals to question his ethical fitness as a CEO and the legality of his posting opinions under a pseudonym. A Whole Foods spokeswoman said at the time that Mackey’s postings were neither illegal nor against company policy.

After the news broke, Mackey himself defended his posts, saying that many people on message boards use pseudonyms. He said that he never meant for those postings to be identified with him and that some of the opinions “Rahodeb” reflected Mackey’s own views, and some did not.

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