Over three months into quarantine, with New York City FINALLY in Phase One, I am laser point focused on my priorities. I need a makeover. Too many nights of Netflix with Ben and Jerry, not enough YouTube workouts, and wearing yoga pants for everything except yoga. I need a makeover. Oh, and when I tried to box dye my hair? Let’s just say it resembled Greg Brady’s from the episode he bought the hair tonic from Bobby. Remember when he turned his hair, along with Cindy’s rabbits a ghastly shade just in time for high school graduation? I am Greg Brady. I need a makeover.
Who else is getting a makeover when this is over? I’ll give you a clue: they have needed a makeover for the last ten years. In fact, every time we see them in the news or social media, they look worse. They used to look good. Respectable, proud, humble. Now, they look villainous, greedy, sneaky, and deceptive. It is going to take a lot more than a trip to the hair salon to make them look great. Yes, Big Pharma. It is time for your extreme makeover. You may have let yourself go, but you have been given an opportunity. Grab it. It may be expensive, but so are those verdicts.
Nuclear Verdicts and Big Pharma
The last ten years the country has watched in disbelief as verdicts continue on an upward trajectory. There have been many explanations offered by lawyers, consultants, and social scientists for this phenomenon including but not limited to:
Our evolving millennial jury, a cohort with less corporate trust and dependence resulting from various historical and technological advances which occurred during their formative years;
A resourceful plaintiff bar able to harness social psychology, and avail itself of third-party litigation funding helping to finance jury research; and
An increased awareness, due to the internet, of corporate profits and executive compensation, as well as the outsized compensation of social media influencers, professional athletes, and Hollywood.
There have been few industries spared the wrath of the nuclear jury, but perhaps the biggest target of the verdicts splashed across our newspapers and computer screens are the pharmaceutical companies. Talc, pesticides, antipsychotic drugs, diabetes medications, medical devices. We have seen the verdicts and they are staggering.
When Big Pharma Was Beautiful
The early roots of the pharmaceutical industry start with the apothecaries that offered traditional remedies as far back as the middle ages, with a range of treatments based on centuries of folk knowledge. However, the industry as we understand it today really has its origins in the second half of the 19th century. The scientific revolution of the 17th century had spread ideas of rationalism and experimentation, and the industrial revolution had transformed the production of goods in the late 18th century, the marrying of the two concepts for the benefit of human health was a comparatively late development. The period between 1918 and 1939 was marked by two breakthroughs that presaged the arrival of the pharma industry as we know it today. The first was insulin that could treat diabetes and the second was penicillin. [i]
As the industry grew wealthy thanks to its growing portfolio of products, the potential ethical conflicts of making money from selling healthcare products became increasingly apparent. George Merck addressed this question directly in 1950, proclaiming “We try never to forget that medicine is for the people. It is not for the profits. The profits follow, and if we have remembered that, they have never failed to appear. The better we remember it, the larger they have been.” [ii]
Big Pharma Looking Its Best
In the early 1950s, fear swept the country as the polio epidemic reached its peak, leaving children especially vulnerable. Of the over 57,000 cases reported in 1952, over 3000 children died and over 20,000 were left with mild to disabling paralysis. The polio epidemic is credited with heightening parents’ fears of the disease and focusing public awareness on the need for a vaccine. [iii]
When Dr. Jonas Salk developed the first polio vaccine in 1953, he was hailed a national hero, and especially lauded for refusing to patent the vaccine. Pharma companies became among the most admired (as well as the most profitable) businesses in America. In the last half of the 20th century, they brought to market medicines that combatted previously untreatable diseases. Drugs were developed for heart disease, rheumatoid arthritis, high blood pressure, anxiety, pain, bacterial infections, asthma, contraceptives, cancer. The 1990s brought the first drugs based on recombinant DNA technology, adding a large number of new treatments to fight disease. Pharma companies also developed vaccines.[iv]
Big Pharma Lets Itself Go
In 1943 Robert Wood Johnson famously crafted “Our Credo,” Johnson & Johnson’s mission statement “to put the needs and well-being of the people we serve first.”[v] How did Big Pharma, an industry so heroic, with a mission to heal the sick, and prevent illness deviate so far from these visions and values, and morph into an ugly, greedy villain, putting profits over people? I suppose like many changes, there wasn’t a tipping point, but rather the aggregate of the circumstances over time which lead to Big Pharma’s reputational decline. One thing is certain, in recent years, Big Pharma has lost the beauty contest. Time to update the beehive and lose the poodle skirt, It is not 1953 anymore.
A 2019 article in Business Insider, a short time before COVID-19 changed our lives, indicated the pharmaceutical industry has ranked last in favorability among Americans, according to a new poll conducted by Gallup. In fact, 2019 marked the lowest net positivity rating — or the difference between people who say they like the industry and those who dislike the industry — that the pharmaceutical industry has had since Gallup started polling in 2001.[vi]
In recent years, Big Pharma has dominated news headlines and has been portrayed as the greedy villains who sacrificed the lives and safety of people for outsized profits. A 2018 publication about the opioid epidemic, Dopesick: Dealers, Doctors, and the Drug Company that Addicted America, the doctors have becomeprescription drug dealers duped by Purdue Pharma’s marketing that downplayed the risk of addiction for their blockbuster drug, OxyContin. [vii]
Big Pharma’s Extreme Makeover
Today we grapple with the COVID-19 pandemic, doing our best to manage and mitigate risk. We quarantine, wear PPE, social distance, and have reconfigured our personal and professional lives to avoid and flatten the curve of the virus. Despite our risk management strategies, we know one truth: A vaccine is the only real hope for beating this virus, and only the pharmaceutical industry has the human capital and physical infrastructure to create one. The difference between waiting four months and four years for a vaccine could be millions of lives.[viii]
Consumers' impression of pharma companies has soared during the COVID-19 pandemic, with 40% now reporting that they have a more positive view of the industry than they did before the pandemic began, according to recent data from The Harris Poll. The positive sentiment, expressed by survey respondents between April 11 and April 13, represents upward momentum. Between March 21 and 23, only 33% of Americans said their view of pharma had gotten more positive. Harris Poll has been tracking the impact of the COVID-19 pandemic on consumer views across a wide swath of industries for the past six weeks. While industry experts and watchers have been cautiously optimistic that the pharma industry's concerted efforts to fight COVID-19 might result in a reputational boost the Harris Poll data is the first major market survey to show clear evidence [ix]
Big Pharma to Jurors: How Do I Look Now?
If the role of a single juror in our justice system is given an exalted status, then an entire jury is Herculean. This group of people, doing their civic duty has the power to make decisions that can have serious financial implications in the context of a civil trial. In the last ten years juries have been loathed, feared, and questioned by the defense bar as they have sent loud, clear, and sometimes nuclear monetary messages to Big Pharma.
However, to really understand “a jury” we must first understand “a juror.” A juror is not a mythical creature. A juror is a mere human, who brings its worldviews, attitudes and experiences to court, and the deliberation room. Jurors are products of their times, and are often subconsciously or even consciously influenced by the cultural zeitgeist. This is the baseline. Great lawyers are storytellers, they can take the facts of a case, weave around the obstacles the Rules of Evidence, cross-examination, and a competing storyteller throw in their path and tell a compelling story to the jury. So hypothetically, if we do have a Jonas Salk moment, and Big Pharma creates a vaccine or treatment for COVID-19, what will the cultural zeitgeist look like from the eyes of a juror? A juror who no longer has to obscure their face, walk six feet from friends, be scared to go to a restaurant? This juror can now attend weddings, graduations, and hold their baby niece. With this worldview, Big Pharma’s lawyer can tell this receptive juror a compelling story evoking the days of the healing apothecaries, of Jonas Salk, of putting “the needs of the people we serve first.”[x] That story will be Big Pharma’s extreme makeover.
[iv] https://www.statnews.com/2019/02/26/anti-vaccine-movement-pharma-tarnished-reputation/comment-page-1/
[vi] https://www.businessinsider.com/big-pharmacy-government-are-americas-top-hated-industries-2019-9
[vii] https://longreads.com/2018/09/20/hating-big-pharma-is-good-but-supply-side-epidemic-theory-is-killing-people/
[viii] https://www.fastcompany.com/90504726/in-defense-of-big-pharma-the-innovation-engine-we-love-to-hate
[ix] https://www.fiercepharma.com/marketing/pharma-industry-reputation-jumps-during-covid-19-harris-poll-finds-positive-surge