Judge orders Pfizer to produce data on Madison County prescriptions

Steve Korris Aug. 9, 2007, 2:53pm

Attorney Stephen Tillery of St. Louis thinks that if people live in Madison County and work at Pfizer in Chesterfield, Mo., that proves Pfizer does business in Madison County.

Tillery, who must prove Pfizer does business in Madison County in order to carry on a proposed national class action in the circuit court, will soon know exactly how many Pfizer workers live in the county.

Associate Judge Ralph Mendelsohn on July 31 ordered Pfizer to produce names, addresses, phone numbers and job titles of employees who live in Madison County.

Mendelsohn will add the result to a pile of facts as he decides whether to keep the case or grant a motion from Pfizer for transfer to Cook County.

The suit claims Pfizer improperly profited from pain killers Celebrex and Bextra. Pfizer pulled Bextra from the market April 7, 2005.

Celebrex is still on the market, available by prescription only.

Mendelsohn's order also added to the evidence pile an estimate of Pfizer's gross revenues from Celebrex and Bextra in Madison County.

He also ordered data on Madison County prescriptions, which he will keep confidential under a protective order he signed the same day.

Tillery had objected to the protective order but he did not appear at a July 24 hearing to argue against it. He sent associate Aaron Zigler.

Mendelsohn asked Zigler, "Would you want your medical records made public for everyone to come view?"

Zigler stammered, "I would – I would not, your honor."

Still he persisted. He said, "The proposed protective order limits who I would be able to disclose confidential information to."

Then he grew mysterious. He said, "It covers most of who I would need to disclose information to in the trial court but it leaves that one category which has recently come up."

He said, "Should the case be appealed it is very likely that both sides will seek help from the present court to file immediate briefs."

Mendelsohn grew mysterious too.

He said, "This protective order is not written in stone. I mean, can't that issue be addressed when that issue really does arise?"

Zigler said, "We can bring it up then."

Mendelsohn said, "Assuming we get it done in this century, yes. Let's worry about it when it arises."

He said he would grant the order.

Zigler then convinced Mendelsohn that Pfizer should keep Tillery up to date on competing class action suits in other courts.

Zigler said Pfizer must identify any case alleging fraud or unfair competition in the sale or marketing of Bextra.

He said, "When there are competing class actions going on in various stages throughout the country, it's important for plaintiffs' counsel to stay abreast of the existence of those cases and what stage in litigation they are in."

He said, "Doing so helps counsel and their clients measure its actions so that we are not pouring money down a black hole only to have a month later Pfizer announce that it settled the case with someone else."

He said, "The only person who is going to know every case dealing with this is the defendant. There is no one place that I can go to look to find out all that information."

Pfizer attorney Richard O'Malley asked Mendelsohn to stay discovery on merits of the case until he decides whether to transfer it.

Mendelsohn asked why and said, "It is still pending litigation no matter where it's going to be litigated."

O'Malley said, "If venue is improper in Madison County, there is no reason why they should be forced to litigate the case in this county."

Mendelsohn said, "I'm having a hard time buying into that argument."

He said, "The discovery in this case, as I'm sure like any other class action, is going to be massive. It's going to be complex."

He said, "There's going to be thousands if not millions of documents being submitted, but it's going to occur if this litigation moves forward whether it's in Alexander County, Madison County or Cook County."

O'Malley blundered, asking for a hearing on the transfer in 90 days.

Mendelsohn said, "How can you say to the – to a court – you know, judge, you've got to set this venue motion down in 90 days, otherwise we're not going to really have discovery."

He said, "I mean, that's really taking away the discretion of a judge by even making that statement."

Pfizer attorney Robert Shultz tried to repair the damage.

If I could jump in for just a second here," he said, "one of the things I think that's at work here is who is ultimately going to run the case?"

He said, "Ultimately another judge may hear this case and that judge ought to preside over that case in the manner in which he wants."

He said, "What is being requested right now is really, let's get into that whole hog set of discovery here in Madison County. And we are saying no, let's take up the venue motion first."

He fared no better than O'Malley. Mendelsohn said, "Without going into the merits whatsoever, right now it is in Madison County."

He said, "Until there is a ruling otherwise the case is being presided over by a Madison County judge who is going to make those decisions."

He said Zigler argued that Pfizer didn't even answer discovery on venue.

Shultz said, "We have documents that are responsive to the discovery that we are ready to produce, but we need to do it pursuant to the protective order which your honor has done."

He said he would produce the documents in seven days.

Zigler said, "It's the first I've heard that I'm getting the

Mendelsohn said, "He just said it. He says he's going to produce in seven days and the man's word is good, I assume."

Shultz said, "It is." He said the documents were ready since September.

Mendelsohn said, "Why didn't you produce them last September?"

Shultz said, "Because we had a protective order issue, your honor. That's been the whole thing."

O'Malley said plaintiffs asked for the number of Celebrex and Bextra prescriptions from Madison County pharmacies.

Mendelsohn said, "If you are going to argue that, I'm going to order that to be produced."

He said, "That is material that can possibly lead to other discoverable materials. That's the whole purpose of discovery."

O'Malley said, "It's not as easy as it sounds. We have a license to the third party vendors who keep track at the prescription end."

He said, "That triangular transaction is tracked by third party vendors who give us a limited right to use their prescription data information."

Zigler said, "I think what Mr. O'Malley is saying is, they don't track it but they buy it from somebody who does track it."

Zigler said they got it from a company called IMS. He said in other cases he got IMS information from Pfizer and GlaxoSmithKline.

He said, "What Mr. O'Malley is saying is, he has the information. It's just, he bought it from somebody else."

O'Malley said, "Yes, your honor, that's what I am saying."

Mendelsohn said, "You have the information?"

O'Malley said, "That we do and we'll produce pursuant to your order."

He said plaintiffs sought to discover information on Pfizer employees living in Madison County.

He said Pfizer has an office in Chesterfield, Mo. He said, "Likely some employees who work there live in Madison County."

He said, "There is no reason for Pfizer's employees who merely live in Madison County to bear the burden of plaintiff's role in discovery."

Mendelsohn read the interrogatory but said nothing about it.

He said plaintiffs sought total gross revenues Pfizer derived from Celebrex and Bextra in Illinois and in Madison County.

He said, "We don't have gross revenue per county this way."

Zigler told Mendelsohn they tracked it by zip code.

O'Malley said, "Those are estimates, your honor."

Mendelsohn said, "Well then, provide the estimates."

O'Malley said, "By zip code?"

Mendelsohn said, "By zip code."

O'Malley asked for a time frame.

Zigler said, "How about 2003, because this lawsuit was filed in 2005 and that gives me -"

O'Malley interrupted and said, "We'll do oh four and oh five, your honor."

Mendelsohn echoed, "Oh four and oh five."

Zigler said, "That's your ruling?"

Mendelsohn said, "That's my ruling."

Zigler said he didn't know if he got a ruling on discovery.

Mendelsohn said, "As long as I'm responsible for this case this will go to the merits too. It will go -"

He stopped and said, "Yes, Mr. Shultz. It will go to the merits. I mean, it is pending litigation."

He said he would set the venue motion at a reasonable time meeting the requirements of all parties to get ready.

A week later he signed an order adopting Pfizer's protective order over Tillery's objection.

In a separate order he denied Pfizer's motion to limit discovery to venue.

He gave Pfizer 21 days to produce documents from a federal multi district suit in California and 28 days to answer interrogatories.

He gave Pfizer seven days to start producing documents and 120 days to finish the job.

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