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New Jersey-based pharmaceutical giant Merck & Co. and a Manhattan advertising agency that it hired to promote the anti-AIDS drug Crixivan have been found liable in a defamation and civil rights lawsuit brought in New York’s state supreme court by a woman whose photograph was published, along with a fictitious biography and medical history, in brochures used to market the drug directly to AIDS patients. Supreme Court Justice Mary M. Werner ruled, in a seven-page decision signed June 13, that Merck and the ad agency, Harrison & Star, had libeled the plaintiff in a “grossly irresponsible manner” and violated Civil Rights Law ��50 and 51, by committing fraud and the intentional and negligent infliction of emotional distress. Werner ordered an “immediate” trial on damages, and the plaintiff’s attorney said she would seek $12 million in compensatory damages and $6 million in punitive damages, provided for by the civil rights statute. Sara Lynn Edelman, an associate with Davis & Gilbert, the Manhattan law firm representing the defendants, said, “It isn’t appropriate to comment on a pending legal matter.” She also declined to say whether she would appeal. According to Wall Street analysts, Merck grossed some $562 million in revenue from the sale of Crixivan in 1997, the year the brochure titled “Sharing Stories” and a flip chart titled “Getting the Facts” were published. In granting summary judgment to the plaintiff in Jane Doe v. Merck & Co., 10786-98, Justice Werner observed that the defendants admitted fabricating the text that accompanied the plaintiff’s photograph. She called “absurd” their contention that, in this case, the test for gross irresponsibility should be whether readers of the fictitious biography would understand it to convey true facts. The defendants themselves sought to apply that standard, as opposed to simple negligence, arguing that, under Chapadeau v. Utica Observer-Dispatch, 38 NY2d 196 (1975) and ensuing cases, that its literature fell “within the sphere of legitimate public concern,” so recovery by a damaged party ought to hinge on the tougher standard. But Werner noted that Huggins v. Moore, 94 NY2d 296 (1999), held that standard applied only to the press. “Defendants are not media defendants and do not claim to be. Rather they ignore this requirement of the ‘grossly irresponsible’ standard and, without any legal support, simply adopt it for themselves, a pharmaceutical company and an advertising agency,” she wrote. She also granted summary judgment on the issue of punitive damages, permitted under the civil rights statute, because she found the “record establishes that the brochure was published with knowledge of the text’s falsity; i.e., actual malice,” the standard set by Lewis v. Newsday, 246 AD2d 434 (1st Dept, 1998). However, she left for a jury to answer factual questions about whether Merck and its ad agency had done so “wantonly, recklessly or in willful disregard” of Jane Doe’s rights, which would establish common law malice. CALLED A ‘TRAMP’ The brochures described the plaintiff as a 19-year-old mother of two small children, ages 18 months and 3 years, and said she had been treated for AIDS for at least two years and was also diagnosed with recurring herpes. Instead, her attorney, Meredith Braxton of the Jericho and Greenwich, Conn., firm Tranfo & Tranfo, said she was actually a suburban housewife and mother in her 30s who contracted the HIV virus from her husband, was never promiscuous and has never had herpes. “Do the math. Their statement is saying my client was having sex since she was at least 15 and produced two children in swift succession. Combined with the false statement that she had herpes, it made her seem promiscuous … a tramp,” said Braxton, noting that libel law in New York requires the offending statement to be viewed in its full context. Her client was recruited by the Morgan Agency, a Los Angeles modeling agency hired by Merck, and was told her story would be used solely for “educational” purposes. She was photographed in 1996 and 1997 by Skip Hine Photography. Justice Werner removed Morgan and Hine as defendants, leaving Merck and its ad agency to face the joint trial on damages. The brochure claimed the drug was used in combination with two others not manufactured by Merck — Retrovir and Epivir — in a clinical study that included “Maria,” the fictitious identity given to the plaintiff. It said that she had also been treated with once-a-day Zovirax, also a non-Merck drug, for herpes. The AIDS community had criticized Crixivan’s requirements that it be taken on a strict schedule and with specific quantities of food and water, and the advertising purported to show that real AIDS patients had easily integrated it into their daily schedules. ‘SELF-CREATED’ STANDARD Justice Werner found that the defendants failed to overcome their own “self-created” standard of gross irresponsibility because they “produced evidence that readers did in fact believe the text. Moreover, defendants’ claim that they did not intend anyone to believe the test is belied by the inclusion of the following language: ‘Note: More than 50 HIV-positive individuals taking CRIXIVAN contributed ideas to this brochure, even though only four of them are highlighted here. Their names have been changed to protect their privacy. We thank them for sharing their stories and their time.’” Werner noted that under Harris v. Hirsh, 228 AD2d 206 (1st Dept., 1996), there are four exceptions to the requirement to prove actual damages — that the statement asserts: an actual crime; a loathsome disease; injures the plaintiff professionally; or imputes unchastity to a woman. She found that Jane Doe had met two of the four exceptions in that the Merck brochures falsely described her as being promiscuous and having herpes. “Defendants’ argument that the test is substantially true because plaintiff is infected with the HPV virus that can cause genital warts is rejected. Even if it can be said that infection with the HPV virus is substantially the same as being infected with ‘recurring herpes,’ defendants wholly ignore the remainder of the text which imputes unchastity to the plaintiff,” she wrote. Under her cause of action for violations of Civil Rights Law ��50 and 51, the plaintiff asserted a limited right to privacy, recently restated by the New York Court of Appeals, that makes it a misdemeanor to use a person’s name or photo for advertising purposes without her written consent. In granting summary judgment on that cause of action, Justice Werner agreed the “Sharing Stories” brochure was clearly for advertising purposes. However, she found that the “Getting the Facts” brochure, unlike “Sharing Stories,” did contain some educational material regarding HIV and AIDS and therefore could not be seen as pure advertising. “For some reason, they forgot to get releases from these models to portray them as real people. It should be a problem with the FDA, too, because these testimonials are about drugs and they’re completely fake,” said Braxton. NO BINDING RELEASE Justice Werner rejected the defense argument that an agreement between Skip Hine Photography and the Morgan Agency was binding as a release on the plaintiff, observing that it specifically said her photo would not be used for advertising purposes. In a separate decision, also signed June 13, Werner sealed the court file to protect Jane Doe’s identity, which had been inadvertently revealed in motion papers filed by one of the defendants. While she acknowledged the public’s interest in access to court records, saying she would consider applications on notice to reopen the record, she said that was outweighed in this case by the plaintiff’s interest.

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