HC-2013-000089 - [2025] EWHC 2376 (Ch)

MSD relied on the evidence of five witnesses of fact, all of whom were cross-examined by Merck.

Anita Parfitt has worked for MSD since 2016 and is now its international data strategy and innovation lead, specialising in data analytics across MSD’s websites, social media and other promotion channels. She provided two short witness statements addressing the regulatory framework governing the promotion of pharmaceutical products in the UK, MSD’s UK marketing activities including its use of websites and social media, and the way in which the list price of products is determined. She was cross-examined briefly (by Mr Ivison), during which she gave apparently straightforward answers, albeit that she frequently responded that the questions put to her concerned matters falling outside her role, which she was therefore unable to answer.Ultimately her evidence was not very useful for the issues for determination in this case.

Kyra Lanza has worked for MSD since 2010 in various roles, and is now an Associate Vice President dealing with MSD’s ESG strategy and engagement, responsible for MSD’s company brand at an enterprise level, including consideration of how that brand is perceived by the general public. She provided a short witness statement addressing the changes made to MSD’s websites, email addresses and social media sites as a result of these proceedings, as well as commenting on MSD’s marketing strategy during that period. Ms Lanza was cross-examined for about an hour (by Mr Brandreth) on MSD’s geo-blocking and the company’s migration of email addresses in the UK. It became apparent that her witness statement had provided information about the costs of Merck’s email migration, in circumstances where that information was not within her knowledge but had been supplied by her solicitors Linklaters, and was materially inaccurate. She was highly defensive when asked about this, and displayed considerable reluctance to engage with the problems with this part of her evidence. Unfortunately, it was clear that her witness statement comments on this issue were not her own evidence. I therefore do not regard her as an entirely reliable witness, and treat her evidence with some caution.

Michael DeFerrari has worked for MSD since 2000, particularly on the “Merck Manuals”, a medical reference work. He provided two witness statements for this trial, giving an overview of the costs associated with the production and maintenance of the manuals. He was briefly cross-examined (by Mr Ivison) on the reputational benefits to MSD of the manuals. He was an honest and straightforward witness, and there was no material challenge to his evidence.

Peter Young has been the director of commercial operations at the fourth defendant since 2019. He provided a witness statement which covered similar ground to that of Ms Parfitt in relation to MSD’s animal health business, explaining the regulation of sales of veterinary pharmaceuticals in the UK, the company’s UK marketing activities including its use of websites and social media, and changes made to the company’s UK websites, email addresses and printed material as a result of these proceedings. He was cross-examined briefly (by Mr Brandreth). His answers were somewhat defensive and did not always engage with the questions.

Martin Rogers has worked for MSD since 2012 and has been its financial controller since 2015. He provided two very short witness statements addressing some specific points relating to MSD’s financial documents and promotional expenditure on the names MSD and Merck Sharp & Dohme in the UK. He was briefly cross-examined (by Mr Brandreth), in particular on the figure given by him for MSD’s promotional expenditure. His answers acknowledged that his evidence on this point was not complete and did not explain the basis for the expenditure figure provided by him.