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A typical juror’s opinion of the Food and Drug Administration has deteriorated-the result of sinking confidence in the federal government and an increasing number of drug-related lawsuits, according to research conducted between 2003 and 2006. The research, done by the Chicago-based legal consulting firm Zagnoli McEvoy Foley (ZMF) illustrates that the FDA’s positive “halo effect,” which benefited pharmaceutical companies at trial in the past, has been tarnished in recent years. In 2003 and early 2004, jurors and mock jurors questioned by ZMF, which has been involved in about a dozen pharmaceutical products liability cases, consistently gave comments displaying their trust in the FDA. Jurors and mock jurors said, for example, that “a drug can be trusted if FDA approves of it.” In addition, the fact that a drug had FDA approval could absolve a pharmaceutical company of guilt in a juror’s eyes, as a result of the “rubbing off” of the FDA’s perceived credibility, according to ZMF consultant Andrea Blount, who worked on the research with colleague Jo Ellen Livingston. By 2005, however, the FDA’s status had declined, with many of those questioned saying that the FDA does not do an adequate job of protecting American citizens from the possible dangers of defective drugs, according to the research. According to ZMF’s research, the erosion in confidence was spurred by an apparent loss of confidence in the federal government-in the wake of failed relief efforts for Hurricane Katrina victims and the Iraq war-and increasing numbers of prescription drug-related lawsuits. As a result of these qualitative observations, according to Blount, ZMF decided to test its findings with a formal poll. In February 2006, the firm conducted a nationwide, online survey of 404 jury-eligible Americans to assess their attitudes about the pharmaceutical industry and the FDA. According to Blount, less than one-third of those surveyed held a positive perception of the FDA. FDA officials did not return calls seeking comment. Juror misconceptions Plaintiffs’ attorney W. Mark Lanier of The Lanier Law Firm in Houston said that while he has noticed the trend, he believes that misconceptions about the FDA’s responsibility and influence have also affected the way that jurors view the agency. “Years ago, most jurors thought that the FDA actually tested drugs. This is not true,” Lanier said. “A good portion of all jurors also thought that all FDA funding came from the government. Now, a lot of the funding comes from the pharmaceutical companies. Some of these misconceptions still exist.” Hope Freiwald of Dechert’s Philadelphia office, an attorney who has represented Merck & Co. in several Vioxx trials, said that she still believes that the public has a positive view of the FDA. “Most people who have historical memory going back to the 1980s and remember the difficulty of getting AIDS drugs approved know how rigorous the process of getting drugs approved is,” she said. “I think that when you ask people general questions about their views of government you get negative responses, but if you talk to them about drug approval in this country, their answers are generally positive,” Freiwald added. But Lanier said that he exploits the agency’s perceived weakness at trial by “telling the truth of the matter,” informing the jury that the FDA is “understaffed and underfunded.” In addition, Lanier said that he shows the jurors how the pharmaceutical companies can influence the FDA’s conduct by claiming that “the FDA has become a revolving door for the pharmaceutical industry.”

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