Petrelis Files

NYT'S JAYSON BLAIR'S POSSIBLE ERROR IN AN AIDS STORY

Arthur Sulzberger, Jr.
Publisher
The New York Times
New York, NY

Dear Mr. Sulzberger:

I wish to bring a June 23, 2001, NY Times story about AIDS written by Jayson Blair to your attention, because there may be an inaccurate figure in the article related to damages sought in the lawsuit.

Blair wrote about a woman who had sued Merck and Company and an advertising agency over the use of her image in an ad for AIDS drugs, without her authorization.

"Her lawyer has said that she would seek $72 million in damages from the two companies," Blair wrote.

However, the AIDS-focused magazine POZ, in its December 2001 issue, said the following about the case.

"Sweet Jane is seeking a mere $12 million in compensatory damages and $6 million in punitive damages."

There's quite a difference between the $72 million cited by Blair and the $18 million mentioned in the POZ news brief.

The Times may want to investigate what the exact amount was that the woman was suing for in damages, and other claims in Blair's June 23, 2001, article.

Regards,
Michael Petrelis
San Francisco, CA
Ph: 415-621-6267

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June 23, 2001
NY Times

Woman Wins Suit on Misleading AIDS Ad
By JAYSON BLAIR

A woman with AIDS whose photograph was used in a brochure for a drug to fight the disease without her permission has won a summary judgment in a defamation and civil rights lawsuit against Merck & Company, one of the world's largest pharmaceutical manufacturers.

Justice Mary M. Werner of State Supreme Court in Manhattan ruled that the woman, who was not identified, had been defamed when Merck and its Manhattan advertising agency, Harrison & Star, used her photograph in the brochure with a fictitious biography.

The brochure described the woman as a 19-year-old with two children and suggested that she had contracted AIDS and herpes through being sexually promiscuous. The woman was actually a suburban housewife and mother in her mid-30's. She did not have herpes and contracted H.I.V. from her husband. She had signed a waiver when her photograph was taken, but had expected that her image would be used only for educational purposes, her lawyer said. She was paid to have her photograph taken, although the exact amount was not revealed.

Justice Werner said the case can now move to a hearing in which a jury would decide how much the woman would receive in punitive and compensatory damages. Her lawyer has said that she would seek $72 million in damages from the two companies. The ruling stated that Justice Werner had found that the company acted with "actual malice" because the "record establishes that the brochure was published with the knowledge of the text's falsity."

Justice Werner rejected the defendants' argument that the brochure was substantially true, and that the woman's signing the waiver removed their liability.

The use of fictitious or misleading biographies is a common, even if controversial, practice in medical marketing, particularly when it comes to AIDS. In a recent instance, the Centers for Disease Control and Prevention was criticized for a marketing campaign intended to increase awareness about the ease of H.I.V. transmission that did not note that the people portrayed were in high-risk groups, such as intravenous drug users or gays.

Critics said that incident led Congress to direct federal AIDS money away from programs for gays and intravenous drug users.

In the more recent case involving the woman in her 30's, critics said they were concerned that the fictitious biography was created to help the average AIDS patient identify with the woman.

"The case is obviously important to our client because it vindicates her and gives her a measure of satisfaction for all the damage and the pain that was caused to her," said the woman's lawyer, Meredith Braxton. "The broader message that is important about this case is that big companies cannot play with the rights of individuals with impunity."

Gregory E. Reaves, a spokesman for Merck, which is based in Whitehouse Station, N.J., said that the company "certainly would not comment on pending litigation." The lawyer representing Merck and Harrison & Star, Sara Lynn Edelman, could not be reached for comment.

The ruling was first reported yesterday in The New York Law Journal. The decision was handed down on June 13.

Dan Willson, a spokesman for the Lesbian, Gay, Bisexual and Transgender Community Center in Manhattan said the real issue was being honest about AIDS.

"There is no reason to be melodramatic about this because the fact of the matter is that the reality of these stories is compelling enough," he said.

Court filings, many of which have been sealed because they include identifiable information about the woman, tell the plaintiff's story.

The records say that the woman was recruited in 1996 by the Morgan Agency, a Costa Mesa, Calif., modeling firm that said her story would be used solely for educational purposes. The woman was photographed by Skip Hine Photography, which is based in Riverdale, the Bronx.

The woman signed an agreement stating that the photographs would be used only for educational purposes.

The photographs first appeared in a Merck educational brochure called "Getting the Facts." But in 1997, they also appeared in a marketing brochure for Crixivan, a drug that Merck developed to fight AIDS .

Merck made $562 million in gross revenue in 1997 because of the drug. The woman plans to request $56 million in punitive damages, or about 10 percent of the gross revenues, and about $16 million in compensatory damages.

The lawsuit was filed in 1998 after the woman went into a health clinic and a friend showed her the photograph and fictitious profile in the brochure. At the beginning of the case, Merck said it would remove her image from its advertising.

But yesterday, the advertisement was still available on a Merck Web page for health care providers.

When she was told about the Web page, Ms. Braxton, the woman's lawyer, said she was surprised that Merck was still using it and said she would go into court on Monday to ask for an order that it be removed from the Web site.

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http://www.poz.com/archive/december2001/inside/aidswevegotyour.html

POZ
12.01

FEATURES

A Merck-y Story

A Jane Doe with HIV won a defamation and civil rights suit against Merck and its ad agency in June. The thirtysomething soccer mom -- who says she got HIV from her hubby -- was identified in a 1997 "Sharing Stories" brochure she gave face to as a 19-year-old with two kids who got HIV and herpes from promiscuous sex. Sweet Jane is seeking a mere $12 million in compensatory damages and $6 million in punitive damages.