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A Suffolk County, N.Y., judge has thrown out a $2 million punitive damages award against Merck & Co. for defaming a woman in a brochure that marketed an AIDS treatment drug. New York Supreme Court Justice Alan D. Oshrin found last week that though the conduct of the drug company and its partner advertising agency, Harrison & Star, may have constituted carelessness or negligence, it did not “rise to the level of hatred, ill will, spite, criminal mental state or willful wanton and deliberate disregard of the interests of others to establish common law malice, the predicate for punitive damages.” In Jane Doe v. Merck & Co., 10786/1998, Oshrin also found that a $1 million award for compensatory damages — humiliation and mental anguish — should be reduced to $650,000, unless the woman wished to have a new trial on compensatory damages. Both the punitive and compensatory damage awards were granted by a jury presided over by Oshrin. Merck and the ad agency had included the woman’s picture in the brochure without her permission. The brochure, which was used to market the anti-AIDS drug Crixivan directly to AIDS victims, contained a fake biography that suggested the woman was sexually promiscuous. Gregory A. Welch of Seattle-based Davis Wright Tremaine, which represented Merck, said his firm was pleased with the ruling. “We’re confident that the court reached the correct result in throwing out the punitive damages,” he said. Joseph A. Tranfo of Tranfo & Tranfo in Greenwich, Conn., said he had received the ruling and was considering his client’s options. He said he could not comment further because he had not spoken to his client. The woman had originally sought $12 million in compensatory damages and $6 million in punitive damages. The plaintiff, known only as Jane Doe, is a mother of two in her 30s who was infected with HIV by her husband. The woman learned that she was HIV positive when she was 32 weeks pregnant and her son was born HIV positive. She has since divorced her husband, remarried and had a second son, who does not have HIV. The woman sued Merck and the ad agency after she was pictured in a brochure called “Sharing Stories” that advertised Crixivan. The woman had been paid for her photograph, but said she believed the photo would only be published in a fact sheet about Crixivan users. Instead, her face appeared in a brochure that described the woman as an unmarried 19-year-old mother of two who not only had HIV, but herpes as well. The brochure suggested that she had contracted the diseases by being sexually promiscuous. Suffolk County Supreme Court Justice Mary M. Werner granted summary judgment to the woman, finding last June that Merck and the ad agency had violated civil rights laws and libeled the woman in a “grossly irresponsible manner.” The judge found that the companies had published the brochure knowing that it was false, the standard for actual malice. But she said a jury should decide whether the actions of Merck and the ad agency were wanton or reckless enough to establish common law malice and justify punitive damages. After a three-week trial on damages, which was assigned to Justice Oshrin, a jury decided in September that the woman should receive $1 million for libel, $1,000 for civil rights violations and $2 million in punitive damages. All but $250,000 of the punitive damage award fell on the shoulders of Merck. FINDINGS VACATED But Thursday, Oshrin vacated the jury’s findings, saying that the failure by Merck and the ad agency to obtain the woman’s consent might constitute negligence, but not common law malice. “The conduct discussed is not so flagrant as to transcend mere carelessness,” Oshrin wrote. “Punitive damages may not be awarded in a case where there is only negligence or poor judgment on the part of the defendant.” Oshrin also found that a compensatory damage award of $1 million was “excessive in some degree due to passion, prejudice or sympathy rather than a reasoned assessment of the evidence of injury.” But, he said, the brochure’s effect on the woman’s “psychological, emotional and overall well being” warranted a “substantial” award of $650,000. The woman has testified that the brochure ruined her self-esteem and caused fellow members of a support group to deride her, sending her into a state of depression. Her psychologist testified about the detrimental effects of the brochure, while a forensic psychiatrist testifying for Merck said the brochure was upsetting to the woman for a maximum of two months and caused no long-term psychological damage. In ruling for the $650,000 award, Oshrin said that the testimony of Merck’s expert, which was based primarily on medical records, “could be found by a jury to be unpersuasive.” Merck may still appeal the underlying ruling on liability issued by Justice Werner. The company had previously asked the Appellate Division, 2nd Department, for a stay of the liability ruling, but its request was denied, and the trial on damages commenced. Victor A. Kovner of Davis Wright Tremaine argued the case for Merck. Also representing the plaintiff, along with Tranfo, was Meridith C. Braxton.

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