Despite Robert F. Kennedy Jr. ultimately agreeing to divest referral fees tied to litigation around Merck & Co.’s HPV vaccine Gardasil to win confirmation as Health and Human Services secretary last year, a quartet of lawmakers are raising fresh concerns about the benefits a recent Merck settlement may confer upon Kennedy’s family.
The latest scrutiny over Kennedy’s financial ties to vaccine litigation comes after Merck in early June agreed to pay a $50 million settlement covering more than 200 lawsuits around alleged Gardasil adverse events.
The settlement ties in “multiple lawsuits for which you were the attorney of record and cases represented by your former employer, Wisner Baum,” where the Health secretary’s son is currently employed as an associate attorney, according to a letter (PDF) sent to Kennedy this week and signed by Sens. Elizabeth Warren, D-Mass., Richard Blumenthal, D-Conn., Angela Alsobrooks, D-Md., and Andy Kim, D-N.J.
Merck inked that settlement agreement despite a substantial body of evidence on Gardasil’s safety and efficacy to prevent multiple types of cancer, the lawmakers wrote, adding that, over the course of the litigation, a judge dismissed “hundreds of cases,” including some where Kennedy was the attorney of record, arguing that ‘no scientist could reasonably conclude’ that Merck’s HPV vaccine would induce the alleged injuries based on such a ‘paucity of evidence.’
In transferring his Gardasil stake to one of his sons, Kennedy was able to exploit what legal experts have dubbed a ‘loophole’ in federal ethics law, the Senators continued in their letter, noting that “despite the ethically-dubious conflict this arrangement poses, you refused to take any further steps to divest the Gardasil stake from your family.
“Now,” the Senators continued, “it appears that your son could stand to gain millions of dollars from Merck’s recent settlement agreement, raising fresh concerns about conflicts of interest.”
The lawmakers contend that Kennedy has done little to address these ongoing conflict of interest concerns and that, during his tenure as HHS chief, he has “refused to disclose which of the hundreds of recently settled Gardasil cases you referred to Wisner Baum.”
That said, Brent Wisner, managing partner of the law firm, told Reuters this week that Kennedy and his son will “at no time” receive fees from a Gardasil settlement.
Equally of concern to the Senators is the possibility that Kennedy may have held some sort of sway over the Merck settlement in his role as HHS secretary, despite the issues that would raise.
Warren, Blumenthal, Alsobrooks and Kim allege that Kennedy has not pledged to recuse himself from HHS, CDC or FDA communications related to Gardasil, “even as they could materially impact the outcome of Gardasil litigation,” and made similar allegations around Kennedy’s commitments to recuse himself from decision-making related to the federal Vaccine Injury Compensation Program (VICP).
“You are charged with setting federal vaccine policy and regulating vaccine manufacturers, including Merck, even as your family and former employer may financially benefit from actions you take as Secretary,” the Senators wrote.
“The settlement – and the ongoing questions about whether your immediate family will benefit from it – raises serious questions about any role HHS may have played in influencing the lawsuit’s outcome,” they added, accusing Merck’s recent legal agreement of reinforcing a “lucrative and dangerous playbook in which litigators with ties to anti-vaccine organizations sue drug companies with scientifically dubious claims and undermine trust in vaccines and America’s public health as a result.”
HHS did not immediately respond to Fierce’s request for comment on the accusations in the letter.
The Senators have laid out a list of 21 questions and commitment requests that they want Kennedy to answer by Aug. 11, spanning issues related to his or other HHS officials’ potential communications with Merck around Gardasil civil claims, Kennedy’s exact ties to the cases in the June settlement, the positioning of Kennedy’s son—Conor Kennedy—in relation to awarded funds from the settlement, potential changes under Kennedy to the VICP and more.
For her part, Sen. Warren has been attempting to shine a spotlight on the Health secretary’s potential conflicts of interest since before his confirmation, citing “grave concerns” last year after Kennedy revealed as part of an ethics agreement that he was entitled to a 10% payout for referring cases to Wisner Baum, which represents Gardasil claimants. While Kennedy pledged to resign as a consultant in the ongoing litigation, he initially said he would continue to collect referral fees in the event of cases being won, provided they didn’t involve the U.S. government.
Kennedy ultimately relented in order to secure his confirmation vote in the middle of last February, agreeing to divest those referral fees to his son.