An article in yesterday's Washington Post said that Richardson-Merrell Inc. distributed and sold thalidomide in the United States. The company distributed thalidomide to physicians in the United States, but did not sell it here.
The American Association for the Advancement of Science (AAAS), the nation's largest scientific society, and a reporter for its weekly magazine are co-defendants with a drug manufacturer in a libel suit filed by an internationally famed Australian physician. He seeks $18 million in punitive and other damages.
Dr. William G. McBride charges in the suit that a Science magazine article defamed him "with utter disregard of the truth and accurate reporting," partly by saying he was paid $5,000 a day as an expert witness, when he says that he was paid one-fifth that sum as reimbursement for expenses and lost income from his medical practice in Sydney.
The article appeared Oct. 31, 1980. On Dec. 17, six days after he learned of it from colleagues, McBride demanded a detailed retraction, to be given the same prominence as the article.
In March the association offered to print a brief correction. Rejecting it as not enough, McBride's lawyers made a new demand on June 1 for a full retraction. Instead, Science ran a one-paragraph, small-type correction July 24. The lawyers called it inadequate, and filed the suit last Friday in Superior Court here.
Association attorney John D. Lane, terming the article "carefully researched," said, "I don't think there's any liability on the part of Science."
Also named as defendants were the drug manufacturer, Richardson-Merrell Inc., and two RM executives who are accused of "actual malice" in planting in the article what they knew to be the "defamation." Then, the suit says, they paid the AAAS $15,000 for reprints and circulated them widely.
The article "is an excellent overview," the company said in a "Dear Pharmacist" letter to U.S. druggists. It "is being made available to you in quantity," RM told its worldwide sales force. It also sent the article to the American Medical Association.
A company spokesman in Cincinnati had no immediate comment.
The lawsuit involves the only prescription medicine specifically approved by the Food and Drug Administration for the nausea and vomiting of early pregnancy.
Taken by or made available to an estimated 30 million women since its introduction in 1956, its trade name in the United States is Bendectin. In other countries, where the pills are sold mostly over the counter, the trade names include Debendox, Lenotan and Merbental.
In an unpublished letter to the editor of Science in November, Rep. Don Edwards (D-Calif.) denounced the article, by staff writer Gina Bari Kolata, as "biased," "flawed" and unworthy of the scientific community.
In reply, editor Philip H. Abelson charged that "a large number of litigating lawyers act as though they believe they can win huge damages by guilt by association." Terming the article "carefully researched," he gave an erroneous publication date for the article and misspelled the name of the drug the two times he mentioned it.
The article was entitled "How Safe Is Bendectin?" It centered on a hearing by an FDA advisory panel on the question of whether the drug, when taken during early pregnancy, is a very weak birth-deforming agent (teratogen) capable of causing limb defects.
One witness was McBride, a teratogen expert who had testified at an Orlando, Fla., trial that Bendectin causes limb deformities and did so in a boy named David Mekdeci.
McBride also was one of the first scientists to report, in 1961, that a sedative called thalidomide caused the birth of armless and legless babies to women who took it in early pregnancy. RM had produced and sold thalidomide in the United States and Canada before its removal from the market.
The suit says McBride "volunteered" to testify; Kolata wrote that he "was paid $5,000 a day to testify in Orlando. In contrast, Richardson-Merrell pays witnesses $250 to $500 a day, and the most it has ever paid is $1,000 a day."
The $5,000-a-day statement was false, James G. Butler of Los Angeles, a lawyer for McBride, told AAAS executive officer and Science publisher William D. Carey in the letters demanding a retraction, which were filed with the suit.
Rejecting the "implication" that the physician "was paid an exorbitant sum to testify" and to do so "in a certain way," Butler wrote that McBride "was not paid to testify. He was paid 1,000 Australian dollars per weekday while away from his office (approximately U.S. $1,116), and he was reimbursed 3,300 Australian dollars for his air fare (approximately U.S. $3,830)." Moreover, he said, "there is evidence available" that RM paid "as much as $2,000 a day plus expenses" to its own witnesses at the FDA hearing.
The one-paragraph correction dealt only with the $5,000-a-day allegation.
Kolata also wrote that "flamboyant lawyer Melvin Belli represented" David Mekdeci's parents; the suit counters that McBride has "never met or talked to" Belli. He "was willing to give his professional opinion" to the court and the FDA panel because of his concern "over the relationship of the drug and the malformations in children," the complaint says.
A transcript of Belli's remarks at a legal seminar in Orlando last February has him saying that "it cost me $5,000 a day to bring" McBride to the trial there. According to documents filed with the suit by Butler and Washington lawyer Allen T. Eaton:
Attending the seminar was Milan Korcok of Fort Lauderdale, described in his letterhead as a "writer/editor." Making or obtaining a recording of Belli's remarks, he enclosed the transcript with a memo he sent to Frederic D. Lamb and two other executives of Merrell National Laboratories (an RM unit sold last February to Dow Chemical Co. and now called Merrell-Dow and Pharmaceuticals).
* Korcok also had written a signed five-page article on "The Bendectin Debate" in the Nov. 8 Canadian Medical Association Journal, which identified him as a "free-lance writer."
* The company, making no mention of a connection with Korcok, sent both his article and Kolata's to the AMA in support of its defense of Bendectin.
Kolata, writing about McBride's work with thalidomide, said:
"He contends that Bendectin, too, causes deformed arms and legs, and he said at the trial that, in his opinion, Bendectin caused David Mekdeci's malformations. For much of his talk at the FDA meeting, McBride dwelt on the leading effects of thalidomide, leading Avery Dr. Gordon B. Avery, a member of the FDA advisory panel to say, 'Dr. McBride, you have convinced me that thalidomide is a teratogen, but I must in my own mind focus on the drugs that are in Bendectin.' "
These statements were made "to indicate to the general public that Dr. McBride did not know what he was talking about," McBride's lawyers allege in the suit. Butler, noting in the requests for a retraction that McBride's "scholastic and scientific achievements" have won international recognition over a 20-year period, said, "To impute to him, as the article does, venality and prostitution of his status can do--indeed, perhaps has done--him irreparable damage."
The suit accuses Lamb of having co-defendant Robert B. Irvine, a public relations executive, "plant" the defamatory material in the article as part of "a campaign" to silence, "smear" and "destroy the credibility and career" of McBride so as to preserve Bendectin as one of its "leading money-makers."
In a set of conclusions and recommendations later adopted by the FDA, the advisory panel said that existing studies prove no association between the use of Bendectin and birth anomalies of the limbs, but that none of them had sufficient "power" to exclude the possibility of a weak defect-causing potential. The panel also pointed to two studies that suggest a possible association with congenital heart defects and cleft lips or palates.
The Science article's sub-headline said, however, that the panel saw "no" evidence that Bendectin causes birth defects.