For ambulance chasers, persistence and a phone book just don’t cut it anymore. Law firms, which once relied on television commercials, billboards, and cold calling numbers in the white pages to find plaintiffs for medical lawsuits, have begun to embrace technology. To locate their ideal pharma victims more quickly and at lower costs, they’re using data compiled from Facebook, marketing firms, and public sources, with help from digital bounty hunters like Tim Burd.
Burd is a devoted practitioner of the art of sales. His Skype username begins with the phrase made famous by Glengarry Glen Ross, a play about desperate real estate salesmen: “Always be closing.” As chief executive officer of DigitizeIQ, Burd feeds demographic data from the U.S. Centers for Disease Control and Prevention into general marketing tools offered by Facebook to identify people most likely to be exposed to a particular drug or medical treatment.
For example, Burd was hired for a lawsuit claiming a medical device used in hysterectomies, known as a laparoscopic power morcellator, causes ovarian cancer to spread in patients. The CDC says women over 55 are most likely to contract that kind of cancer. Burd says CDC data are especially powerful in combination “with Facebook, which is why we love it so much, because there’s ovarian cancer support groups and stuff like that. So we target women in the country over the age of 55 that ‘like’ an ovarian cancer support group. That’s a pretty targeted demographic.”
A recent spate of lawsuits related to transvaginal mesh implants has made patients who have undergone the surgery a valuable commodity. The lawsuits claim the mesh inserts, which are designed to repair damaged pelvic tissue, have resulted in health complications for many women. Using CDC data, Facebook, and other information, Burd says his San Francisco company has turned up the names of about 10,000 women who may have gotten the procedure. Personal injury lawyers will pay as much as $3,000 per name, says Burd. “We use age, gender—it’s only women that qualify, age typically 40 and up. It’s happened to a lot of parents because after they had a kid, that messed up their insides,” he says. “So we cast a wide net, really, and then narrow it down from there, from whatever does well.” Facebook declined to comment.
The sophistication of newer plaintiff procurement techniques is leaving pharmaceutical companies inundated by mass tort lawsuits. Johnson & Johnson is facing more than 24,000 lawsuits over its vaginal mesh implants. A jury in California ordered the company on March 5 to pay $5.7 million to a woman who said one of its vaginal mesh implants eroded inside of her. In January, J&J lawyers told a federal judge that firms were violating medical data laws to track down plaintiffs.
These kinds of suits are costing big pharma billions of dollars. Bayer has paid out about $1.92 billion in the U.S. to settle some 9,600 claims saying its contraceptives caused blood clots, according to a company report, which also noted that the drugmaker did not admit guilt in those settlements. On April 28, Takeda Pharmaceutical agreed to pay $2.37 billion to settle suits accusing the company of hiding cancer risks associated with its Actos diabetes medicine. Takeda declined to comment, and Bayer referred a request for comment to the company report, which also says that as of April 20, about 1,000 more claims are under review for settlements.
The work, while lucrative, doesn’t make Burd or his ilk particularly popular at dinner parties.
“We definitely get a lot of people that yell and scream at us online—’ambulance chasers,’ and, ‘You lawyers are ruining the country,’ yada yada yada,” he says. “Unless you’re advertising kittens, or puppies, or Super Bowl stuff, or Playboy—stuff everyone pretty much likes—there’s always going to be a group of people who give negative feedback.”
But Burd says the work is morally compelling because it helps victims of deficient medical products. “They don’t realize how many people are affected,” he says.
The business of locating potential victims for mass tort cases, known in the industry as lead generation, isn’t new, but it’s maturing dramatically. Specialists are tapping millions of bits of public and nonpublic data to slice and dice profiles by age, gender, geography, and medical condition. Mass tort cases have surged in the past two years. The number of pending federal suits that span multiple districts in the U.S. jumped 94 percent from March 2013 to April 2015, according to data compiled by Bloomberg. Philadelphia’s Complex Litigation Center, the first U.S. court to focus exclusively on mass tort lawsuits, saw filings climb 150 percent in 2014, according to the Pennsylvania Record, a legal journal. The rise there was driven by pharmaceutical cases, including 987 involving Johnson & Johnson’s schizophrenia drug Risperdal and 694 pelvic mesh cases. There is no evidence, however, linking the rise of mass torts to increased use of online data. “Mass tort advertising as big business, I think, is only going to continue to increase in the future,” says Cary Silverman, an attorney at Shook, Hardy & Bacon in Washington.
The legal machine may be a patently American tradition, but the industry extends far beyond the nation’s borders. At offices in Ahmedabad and Gujarat, India, Solution BPO Services employs 160 operators making as many as 20,000 calls a day. Many of those are to possible victims of pharmaceutical misdeeds in the U.S., in addition to general telemarketing and insurance-related calls. Quality data are now crucial as lead generators face more competition. Finding a single one can take 5,000 to 6,000 calls, even when using demographics and info people volunteer in online surveys, says Deepak Jain, the chief executive officer of BPO.
The company declined to specify the types of data it purchases. Data brokers such as Acxiom sell data on almost every American and can place them into hundreds of different categories for pennies a name. “We sell our data for marketing purposes to all legitimate marketers, but lead generation is not an area of focus for us,” says Ines Gutzmer, an Acxiom spokeswoman. Jain also declined to name his clients or pending cases, but according to BPO’s website, the company has generated leads for patients harmed by transvaginal mesh, Actos, and Yaz birth control.
Drug companies are struggling to make sense of changes in the legal industry. Johnson & Johnson filed an affidavit calling attention to an Indiana nurse who said she’d received about 25 calls from solicitors in May 2014 claiming to have records showing she’d taken Yaz, a Bayer drug that has been linked to blood clots. In one call, the woman, who was not named in the court transcript, was asked about her recent surgical history, and the caller said she could receive up to $40,000 if she was willing to say she had complications related to a vaginal mesh implant. J&J didn’t name any call centers. The plaintiffs’ lawyers said in a court filing that they didn’t hire firms to solicit bogus cases. J&J later filed to abandon the motion in a West Virginia district court without giving an explanation. “We continue to work with the plaintiff lawyers in the litigation based in West Virginia to try and get to the bottom of what is a disturbing trend that could potentially threaten the integrity of the judicial system,” says Ernie Knewitz, a spokesman for J&J.
On April 15, a Bloomberg reporter received a call from a woman who seemed to be relying on a script quite similar to the ones cited in J&J’s affidavits. The caller said she was reaching out regarding “medical compensation.” She then told the reporter, “We are helping lady undergoing bladder surgery.” When the reporter called the number back, a man who identified himself as David Miller picked up. He said he worked for the Legal Help Center in Tallahassee, Fla., and had found the reporter’s cell phone number from the “county medical registry.” Such government offices do not exist in the state of New York, where the reporter is based. Miller couldn’t be reached for further comment because his number has been disconnected.
In the initial call, Miller explained that his company had received phone numbers in bulk and was calling them to see if they had used certain medical devices or drugs and whether the people had had any complications. He didn’t have her medical records, he said. The reporter does fit the ideal demographic, however, for mesh procedures. She’s in her 30s and recently had a child, info that’s easily attainable from data brokers for a small fee. Toward the end of the conversation, Miller proceeded to fish for information, asking if the reporter’s friends or relatives had any problems with vaginal mesh implants or whether she’d happen to suffer any issues related to Bayer’s prescription blood-thinner Xarelto. Even with all of the data available, salesmen sometimes can’t shake old habits.
—With Jordan Robertson
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