�Dodgeball Vioxx" is a now-notorious document that both captured the popular imagination and played a prominent role in Mark Lanier�s opening statement in Ernst v. Merck. (E.g., AP/CNN, Jul. 20.) The document is a colorful set of pages that has been characterized as instructing sales representatives to �dodge� questions about Vioxx. Except that the document does no such thing. I saw the document for the first time on line at a web site promising "smoking gun" documents about the Vioxx case.
The �Dodgeball� game was part of a day-long training session for representatives on how to intelligently answer questions and concerns doctors might have. The session also had role-playing and other educational games, including one that had sales representatives throwing a koosh-ball to one another, and another that was a game show team competition similar to �Jeopardy!� Dodgeball was a card game that consisted of two-sided cards; some cards had questions that doctors might pose to pharmaceutical representatives; other cards said �Dodge� and allowed the representative to advance without answering a question.
Don't just take my word about what the document says: Read it for yourself.
One might question the pedagogical effectiveness of this exercise, which could easily be satirized in a �Dilbert� cartoon. But it�s hardly the sinister conspiracy that the plaintiffs� bar has sold to the media, which apparently took attorneys� representations at face value without actually trying to understand the underlying document. It says something about the litigation system's creative cherry-picking of documents that a camaraderie-building educational exercise can be characterized as one that �taught representatives to play �Dodgeball� when doctors voiced concerns.� (That quote comes from Alex Berenson, �For Merck, The Paper Trail Won�t Go Away,� New York Times, Aug. 20, without any qualification whatsoever.) If lawyers need to vet the most trivial activities to anticipate the possibility that they�ll be used against the company in future product liability litigation—and that reporters will unthinkingly parrot the claims of plaintiffs' attorneys—the costs of doing business will rise astronomically.
The spin of the plaintiffs' bar after their Humeston loss was that Humeston's attorney, Chris Seeger, didn't emphasize the "marketing" documents enough. But he did play up the "Dodgeball Vioxx"—the jury just saw through it.
That this document is what the plaintiffs' bar is claiming is the smoking gun just goes to show how flimsy the case against Vioxx is; if only the New York Times weren't participating in the attempted assassination. (Update: Wonkette falls for the hype.)