Judge refuses to dismiss female employees' $100M lawsuit against Merck; allege boys club atmosphere

[proverbialwisdom]

Source: By Thomas Zambito | NJ Advance Media for NJ.com

on October 08, 2014 at 6:21 PM, updated October 08, 2014 at 6:45 PM

CAMDEN — A federal judge today turned back an effort by lawyers for Merck & Co. to dismiss a $100 million lawsuit filed by female sales representatives who claim the drug maker fosters a “boys club” that rewards male “breadwinners” with promotions and demotes women after they return from pregnancy leave.

U.S. District Court Judge Joel Pisano did not rule on the merits of the class action lawsuit but said the women have to date raised issues that are “plausible.”

“While it is too premature to determine whether plaintiffs have significant proof to suffice under this standard, plaintiffs have certainly pled sufficient allegations regarding defendants’ promotion practices and subjective decisionmaking such that plainiffs’ class claims are plausible,” Pisano wrote.

In a statement, Merck said it will continue to defend itself against the allegations.

"We are disappointed in the court’s decision, but remain confident that this case lacks merit," the statement said. "Merck will continue to vigorously defend itself, and remains fully committed to providing equal employment opportunities for all employees. Merck has a strong anti-discrimination policy that prohibits discrimination on the basis of characteristics, such as gender, pregnancy, race, age, disability and sexual orientation."

The lawsuit was filed in May 2013 by five female Merck employees on behalf of others who may find themselves in a similar situation.

Read more: http://www.nj.com/news/index.ssf/2014/10/judge_refuses_to_dismiss_female_sales_reps_100_million_lawsuit_against_merck.html

[Demeter]

1. Tough Cookies, Merck

As ye sow, so shall ye reap

[rhett o rick]

2. This is rhetoric: "Merck has a strong anti-discrimination policy that prohibits discrimination on

basis of characteristics, such as gender, pregnancy, race, age, disability and sexual orientation." It's probably written in a document that they have that "policy". They didn't bother to mention if they ever enforced that "policy". I hope the women win.

[xocet]

4. Merck seems to have been doing some dodgy things in the past two decades or so....

If the women's allegations are true, I too hope that the women win their lawsuit.

Of course, Merck claims this:

Merck Named To 2013 Working Mother 100 Best Companies
Tuesday, September 17, 2013 2:20 pm EDT

Merck (NYSE: MRK), known as MSD outside the United States and Canada, announced today that it has been named as one of the Working Mother 100 Best Companies for 2013.

Honored on the list for the 26th year, Merck is among the 100 companies recognized for their commitment to progressive workplace programs, including female representation, compensation, child care, flexibility, time off and leave, family-friendly programs and company culture. Those chosen also demonstrated their commitment to supporting working moms to be healthy.

“This award recognizes Merck’s commitment to fostering an environment where all employees, including working parents and those who provide care for others, can effectively integrate work and life, take care of themselves and their families and reach their professional goals,” said Dottie Brienza, Chief Diversity Officer and Executive Talent Leader, Merck.

Merck provides employees with a number of tools, programs and resources that promote health and wellness. The company offers a complete suite of flexible work arrangements for employees and their families to support an inclusive and welcoming environment. Some of these arrangements include flex time, job rotation, job share programs, child care centers, dependent care solutions, a college coach, a special needs program, and online caregiver support.

...

http://www.mercknewsroom.com/news-release/diversity/merck-named-2013-working-mother-100-best-companies

However, one must take that with a shaker full of salt since Merck did (according to the NYT) pay Elsevier to publish a fake journal as a marketing tool:

Merck Paid for Medical ‘Journal’ Without Disclosure
By NATASHA SINGER
Published: May 13, 2009

Pharmaceutical companies routinely offer doctors reprints of articles from medical journals that are favorable to their products.

But news of a Merck-sponsored publication for doctors in Australia, that has come to light in a personal injury lawsuit there over Vioxx, has raised eyebrows in international medical publishing.

From 2002 through 2005, the Australian affiliate of Merck paid the Australian office of Elsevier, an academic publisher, to publish eight compilations of scientific articles under the title Australasian Journal of Bone and Joint Medicine, a spokesman for Elsevier said.

The Merck marketing compilation was unusual in that it looked like an independent peer-reviewed medical journal. It even called itself a “journal,” without indicating in any of the issues that Merck had paid for it.

...

http://www.nytimes.com/2009/05/14/business/14vioxxside.html

I could not believe it when I read that. Merck used to be respected.

[rhett o rick]

7. Don't take it as personal. It's not personal. It's Capitalism. Acquiring wealth is the most importan

goal. If people die, so be it. Gaining wealth is capitalism.

[xocet]

10. It is not that it's personal. It is stunning to see how far they seem to...

have fallen since the mid-1980's. Maybe the earlier impression of respectability was just an illusion - my perspective was more limited then.

The first link that I provided if it is just some sort of corporate propaganda piece would indicate the height of cynicism, whereas the second link which I know to be accurate represents the height of intellectual dishonesty.

[whereisjustice]

3. Merck would happily see millions suffer rather than give up $.01 of profit or CEO pay...

and they are protected from justice by the cash they give to Congress and White House. Any penalty will be written off as a tax deductible cost of doing business.

[xocet]

5. Can you back that up with anything substantive or is it merely a libelous statement?

Merck actually has done quite some good in the world which you might not recognize - such as supporting successful work in synthesizing vitamin B1, etc. Additionally, Merck publishes a very well respected manual on diagnosis and treatment (The Merck Manual) and also a reference work for physicians (PDR).

Here is a book that details some of the history of pharmaceutical research and with it some of Merck's history:

Pharmaceutical Achievers: The Human Face of Pharmaceutical Research
http://www.amazon.com/Pharmaceutical-Achievers-Human-Face-Research/dp/0941901300

It is published by the Chemical Heritage Foundation which is supported by these organizations:

http://www.chemheritage.org/about/affiliates.aspx

Thus, the Chemical Heritage Foundation is not a mouthpiece for Merck.



Yes, Merck has had some problems recently, but your statement is beyond the pale. Put up some proof or retract it.

[whereisjustice]

6. lol - here he comes to save the day, it's super PhRMA! Hero of the CEO, standing up for the 1%

the Merck Manual you say? lol, guess what is also well respected about Merck? The nearly $1.4 million dollars a year they give to politicians to bribe them to prevent price negotiations with government drug plans. And that is the amount you can trace. The actual amount may be higher since there are so many ways to launder money.

Now, if you want to start a war over the corrupt business practices of Merck, go ahead - there's plenty more.

Over the last few months many drugs companies have hit the headlines for allegedly committing fraud, the most recent being Merck. This document reveals 7 companies who have been reported for committing fraud since January 2012.

Pharma Fraud Number 1: Merck

Recently Merck has been in the firing line for allegedly fraudulently representing the mumps component of its MMR vaccine. It has been alleged that Merck have been fraudulently informing the public that the MMR II, used to replace the MMR vaccine Pluserix, is an effective vaccine when this is not true because the studies proving the vaccines effectiveness are said to be falsified.

According to many reports the Mumps component of the vaccination is ineffective and that the results of the tests carried out on the vaccine have been altered. The Child Health Safety website (1) reporting the story states that whistleblowers working for Merck have said that they witnessed fraud firsthand when they worked for the pharmaceutical company, between 1999 and 2002, and that they were pressured to participate.

Child Health Safety have reported that virologists Stephen A. Krahling and Joan A. Wlochowski described a supervisor working for Merck manually changing test results that showed the vaccine wasn’t working and then hurriedly destroying the evidence to keep the fraud from being exposed.

According to the report the whistleblowers stated that the supervisor then lied to FDA regulators who came to the laboratories to check after they were alerted to the problem. Child Health Safety wrote:

“A top Merck vaccine official told Krahling the matter was a “business decision,” the suit says, and he was twice told the company would make sure he went to jail if he told federal regulators the truth.” http://vactruth.com/2012/07/09/7-examples-pharma-fraud/

Feds Launch Bribery Investigation into Drugmaker Merck
The Associated Press
Aug 9th 2010 7:45PM
Updated Aug 9th 2010 8:53PM

Drugmaker Merck is under investigation for possible violations of anti-bribery laws. Two federal agencies are probing drugmaker Merck & Co. (MRK) for possibly violating anti-bribery laws in multiple foreign countries.

Merck, the world's second-biggest drugmaker by revenue, has received inquiry letters from both the Department of Justice and the Securities and Exchange Commission, the company said in a regulatory filing. The letters "seek information about activities in a number of countries and reference the Foreign Corrupt Practices Act," according to Merck.

The FCPA act bars U.S. companies from bribing government officials in other countries to win business, among other things.

"Merck has in place an FCPA compliance program, and our policy is to conduct our business in accordance with all applicable laws, including FCPA," Merck spokesman Ron Rogers said Monday.

Yes, I know this suit was mysteriously dropped along with charges against other pharma companies. The details of the dismissal have not been made public in the same way charges against wall street banks were mysteriously dropped and details never made public.

Also this week in the Wall Street Journal, it was reported that American pharmaceutical company Merck, Sharp & Dohme has agreed to pay $950 million to resolve criminal charges and civil claims related to its promotion and marketing of the painkiller Vioxx® (rofecoxib). Merck will plead guilty to a misdemeanor for its illegal promotional activity. Vioxx (which was also licenced by the IMB in Ireland) may have led to more than 27,000 heart attacks and sudden cardiac deaths

Whatever the motivation, it appears hundreds more economically disadvantaged children and their families were put at risk by their participation in a clinical trial they were not told they were taking part in.

Compound this disregard for informed consent with participants being told they were priviledged to receive a successful and very expensive vaccine from overseas. Nevermind the fact that this ’successful vaccine’ had not been approved for use in any country in the world.

The people of India are not the only ones who may suffer the effects of this particular set of clinical trials. What ’results’ will Merck report to the rest of the world on this set of trials where the exclusion criteria was apparently ignored?

What ’results’ will Merck report to the rest of the world when no adverse events were recorded? One can certainly assume the adverse events which apparently were not recorded will no longer exist.

Will pretending these new medical conditions did not happen allow Merck to report their new V503 HPV vaccine is safe?

http://sanevax.org/hpv-vaccine-trials-in-india-is-merck-above-the-law/

n 2009, four years before the Trans-Pacific Partnership (TPP) was a widely-debated trade deal, few would have noticed a new issue popping up in a handful of lobbying reports. That year, 28 organizations filed 59 lobbying reports mentioning the then far-off trade agreement. Almost half of those organizations were pharmaceutical companies or associations.

It was an early clue as to which industry would take the most active role in trying to shape the trade agreement while it was still secret from the public. From 2009 until mid-2013 (the time during which the language of the agreement was still reasonably fluid), drug companies and associations mentioned the trade agreement in 251 separate lobbying reports – two and a half times more than the next most active industry (at least measured by lobbying reports).

https://sunlightfoundation.com/blog/2014/03/13/tpp-lobby/

[xocet]

9. I saw your first link. That is an anti-vaccination site from what I can tell. That is not the...

strongest way to start the defense any argument.

You did not provide a link to your claim of $1.4 million being given to politicians - so I'll provide that for you:

https://www.opensecrets.org/pacs/lookup2.php?strID=C00097485&cycle=2014

Additionally, here is a graph of Merck's lobbying expenditures:

https://www.opensecrets.org/lobby/include/IMG_client_year_comp.php?id=D000000275&type=c

(2014 has only incomplete data.)

Coca-Cola has a similar profile of lobbying expenditures in the last several years:

https://www.opensecrets.org/lobby/include/IMG_client_year_comp.php?id=D000000212&type=c

(2014 has only incomplete data.)

Everyone does it, so it is ok, right? Wrong: lobbying and the influence of money in politics should be eliminated.

Beyond that, health care should be changed so that everyone in the US is part of one, single large "risk pool", and health insurance companies should be eliminated for all intents and purposes. The ACA did not even move in that direction due to many things including the influence of money in politics.

Even still beyond all of this, drug development and delivery probably should be completely nationalized (along with health care) so that drug development is not driven by the profit motive and so that drug development can be expanded to cover as many areas as possible.

Of course, more people would need to be highly educated to carry this out, so university would need to be free to all, and it would be necessary to educate as many as possible in pharmacology and medicine - no one can say who will make the next step forward, so as many as possible should be encouraged to pursue as many avenues forward as possible.

As noted, anti-vaccination sites are not credible, so I won't address the first claim you make - the one that alleges fraud.

Below is the background on your second claim. It does look like the DOJ and the SEC are done investigating Merck for the time being, but it is noted that more information may be requested in the future. Your choice of the word 'mysteriously' may be apt or it may be that the questions that the DOJ and the SEC had were temporarily satisfied by Merck's responses. Without further specific information which is it? I cannot tell any better than you can. Does there need to be more transparency? If the investigation is complete, there certainly should be: the public should be made aware of the reasons for this outcome. However, other companies' practices were also being investigated - Eli Lilly was fined; Pfizer was fined; and Baxter International was not fined. Without transparency, what can be made of this information? Quite a lot or nothing at all. Given that some other companies were assessed fines, I would tend to believe that the investigation found nothing on Merck. That being said, bring on the transparency!

February 28, 2014, 11:54 AM ET
Merck: DOJ Ends Bribery Probe
By Rachel Louise Ensign

The Justice Department has dropped its foreign-bribery probe of Merck MRK +2.94% & Co. without taking any action, the pharmaceutical company said.

The disclosure, which came in a securities filing, signals that U.S. authorities’ industry-wide foreign bribery probe of drug makers and medical-device manufacturers may be winding down. Medical-device firm Baxter International Inc.BAX +2.22% last week said the Justice Department and Securities and Exchange Commission closed their investigations without pursuing penalties.

Merck said it “has been advised by the DOJ that, based on the information that it has received, it has closed its inquiry into this matter as it relates to the company.”

Merck in 2010 disclosed that it received letters from the DOJ and SEC mentioning the Foreign Corrupt Practices Act and seeking information on the company’s activities in a number of countries. The recent filing did not provide any update on the SEC’s probe.

http://blogs.wsj.com/riskandcompliance/2014/02/28/merck-says-doj-has-ended-bribery-probe/

DOJ declination for Merck
By Richard L. Cassin | Monday, March 3, 2014 at 1:08AM

Big-pharma Merck said an SEC filing Thursday that the DOJ has closed its FCPA investigation of the company.

Merck first disclosed in 2010 that it received letters from the DOJ and SEC asking for FCPA-related information about its activities in a number of countries.

The New Jersey-based company didn't disclose what countries were involved or provide details of the investigation.

Last month, bio-science firm Baxter International said the DOJ and SEC closed their FCPA investigations that also began in 2010 and won't take further action.

...

http://www.fcpablog.com/blog/2014/3/3/doj-declination-for-merck.html#

From pg. 107 of SEC Form 10-K, 02/27/14
Annual report which provides a comprehensive overview of the company for the past year

Governmental Proceedings

...

As previously disclosed, the Company has received letters from the DOJ and the SEC that seek information about activities in a number of countries and reference the Foreign Corrupt Practices Act. The Company has cooperated with the agencies in their requests and believes that this inquiry is part of a broader review of pharmaceutical industry practices in foreign countries. The Company has been advised by the DOJ that, based on the information that it has received, it has closed its inquiry into this matter as it relates to the Company. In the future, the Company may receive additional requests for information from either or both of the DOJ and the SEC.

...

http://services.corporate-ir.net/SEC/Document.Service?id=P3VybD1hSFIwY0RvdkwyRndhUzUwWlc1cmQybDZZWEprTG1OdmJTOWtiM2R1Ykc5aFpDNXdhSEEvWVdOMGFXOXVQVkJFUmlacGNHRm5aVDA1TkRJM09EZ3dKbk4xWW5OcFpEMDFOdz09JnR5cGU9MiZmbj1NZXJja0NvLnBkZg==

So, anyway, there is that point - on to your next one.

Yes, the Vioxx incident was very seriously wrong and is indefensible. Here is a link to that:

Merck to Pay $950 Million in Vioxx Settlement
By Peter Loftus And Brent Kendall
November 23, 2011

Merck MRK +2.94% & Co. agreed to pay $950 million and plead guilty to a criminal misdemeanor charge to resolve government allegations that the company illegally promoted its former painkiller Vioxx and deceived the government about the drug's safety.

The settlement of a seven-year U.S. government investigation brings Merck closer to resolving the mountain of litigation that followed the company's 2004 withdrawal of the big-selling drug from the market after a study showed it increased the risk for heart attacks and strokes.

It marks the latest big payout by a drug company to settle health-care fraud allegations, underscoring heightened government scrutiny of the way drug makers do business. GlaxoSmithKline GSK +1.15% PLC recently reached an agreement in principle to pay $3 billion to settle U.S. allegations of improper drug marketing. Pfizer Inc., PFE +2.05% Eli Lilly LLY +1.59% & Co. and AstraZeneca PLC also have reached costly settlements in recent years.

The Merck settlement also boosts the company's Vioxx-related legal costs. The company previously agreed to pay $4.85 billion to settle thousands of product-liability lawsuits alleging Vioxx caused injuries and deaths.

...

http://online.wsj.com/news/articles/SB10001424052970204531404577054472253737682

Indefensible sums that one up.


Your next point links to another anti-vaccination site - this sort of site only weakens your argument. It is not credible: i.e., it is funny how none of their "complete reports" are publishable in peer-reviewed journals. Instead, they only end up as "a matter of public record." (Mad scientist: "Yeah....I've got a new, complete theory of gravity, and it is now a matter of the public record....Really, see I wrote it on paper in crayon....Why can't I get anyone with any expertise to evaluate it??...sigh...&quot

HPV Vaccine Trials in India: Is Merck above the law?
July 7, 2014 By admin

...

A complete report of the investigation results written by Dr. Anand Rai, Kelly O’Connor, Amoli Tuli, and Anisha Bhattacharya is now a matter of public record.

...

http://sanevax.org/hpv-vaccine-trials-in-india-is-merck-above-the-law/

Your last point seems to be about Merck, but it really is not directly about Merck. If you look at the article Pfizer, Inc. is prominent, as is PhRMA, as is the Generic Pharmaceutical Association, as is Teva Pharmaceutical Industries, as Biogen Idec, .... Merck is just not mentioned.

https://sunlightfoundation.com/blog/2014/03/13/tpp-lobby/

Now, if you were to want to argue that Merck is deeply linked to PhRMA, you could have argued that with this article:

PhRMA elects Pfizer, Merck execs to senior roles
By Megan R. Wilson - 04/11/14 10:15 AM EDT

PhRMA elected three new senior members during the trade group’s annual meeting on Friday.

Ian C. Read, chairman and CEO of Pfizer, was named chairman of the powerful association, while the head of Merck & Co., Kenneth C. Frazier became chairman-elect of the board of directors.

The Pharmaceutical Research and Manufacturers of America (PhRMA) also elected George A. Scangos, the chief executive of biotech company Biogen Idec, as the treasurer of its board of directors.

“At a time when collaborative medical science and healthcare delivery in the U.S. and around the world are rapidly evolving, we are fortunate to have Ian Read as chairman,” said PhRMA’s chief, John Castellani, in a statement. “His vision for the future of our healthcare system will help guide PhRMA as we embark on the many challenges and opportunities ahead.”

...

http://thehill.com/policy/healthcare/203296-phrma-elects-pfizer-merck

So, that covers what you wrote. Yes, Merck has done a few indefensible things, Merck is driven by the profit motive, and Merck has severely tarnished its earlier reputation by its actions. However, your earlier statement is so hyperbolic that you seem to pretend that Merck has done and does no good whatsoever. That is demonstrably incorrect - you can find that data in my earlier post (Vitamin B1's synthesis, etc.)

FYI: Here is an interesting piece on pharmaceutical development that might shed some light on the economics thereof. The main question is actually how to expand this process so that all people are well served by it - not just those who can afford to pay for hard-won pharmaceuticals and true health care:

Are Drug Companies Faking an Innovation Crisis? Uh, No.
By Guest Blogger | August 16, 2012 12:39 pm

Derek Lowe is a medicinal chemist who has worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer’s, diabetes, osteoporosis, and other diseases. He has been writing about drug discovery at In the Pipeline, where this post originally appeared, for more than ten years.

The British Medical Journal says that the “widely touted innovation crisis in pharmaceuticals is a myth.” The British Medical Journal is wrong.

There, that’s about as direct as I can make it. But allow me to go into more detail, because that’s not the the only thing they’re wrong about. This is a new article entitled “Pharmaceutical research and development: what do we get for all that money?”, and it’s by Joel Lexchin (York University) and Donald Light of UMDNJ. And that last name should be enough to tell you where this is all coming from, because Prof. Light is the man who’s publicly attached his name to an estimate that developing a new drug costs about $43 million dollars.

I’m generally careful, when I bring up that figure around people who actually develop drugs, not to do so when they’re in the middle of drinking coffee or working with anything fragile, because it always provokes startled expressions and sudden laughter. These posts go into some detail about how ludicrous that number is, but for now, I’ll just note that it’s hard to see how anyone who seriously advances that estimate can be taken seriously. But here we are again.

...

Enough. What we have here is someone’s fantasy about how drug discovery works, not the reality. Profs. Light and Lexchin don’t seem to have noticed that the pharma industry has been laying off thousands of people in recent years, or that the stocks of most of the publicly traded companies haven’t been very strong investments. If it’s as easy (and as cheap) to discover new drugs as they claim, we should be fighting off the investors, but where are they? Drug companies are certainly not consistent angels, but neither are they devils—and the last thing they are is lazy and complacent devils, at that.


http://blogs.discovermagazine.com/crux/2012/08/16/are-drug-companies-faking-an-innovation-crisis-uh-no/

All told, I'm not defending Merck. It is simply that your earliest statement is remains so hyperbolic that it is unsupportable - I asked that you show me a link to your specific claim and you could not do so:

"Merck would happily see millions suffer rather than give up $.01 of profit or CEO pay..."

http://www.democraticunderground.com/1014913583#post3

That is as ridiculous as your snark (and apparently your alignment with the anti-science/anti-vaxxer crowd) -

"lol - here he comes to save the day, it's super PhRMA! Hero of the CEO, standing up for the 1%..."

http://www.democraticunderground.com/1014913583#post6

Good luck with your future arguments.

[rhett o rick]

11. His statement may be hyperbolic but I believe it makes a point. While you say Merck has done

a lot of good, it was a means of achieving more wealth and a secondary to that goal.

Corporations have no morals. We should neither expect them to nor treat them like they do.

Corporations have one objective and that's to make profit. Working toward that goal may see them do good or bad, but it's our responsibility to see that they are regulated so they do good and do no harm.

[xocet]

12. I appreciate your commentary and totally agree that corporations should be strictly regulated....

May I send you a short pm regarding the topic of this subthread's discussion?

[rhett o rick]

13. But of course. I am leaving for a local "Drink Liberally" event in a few minutes, so

I might not get a chance to respond until later.