Twice this year Madison County Associate Judge Ralph Mendelsohn has ruled against plaintiff attorney Stephen Tillery in a proposed class action against drug maker Pfizer, and both rulings have ended up in Mendelsohn's wastebasket.
At a May 21 hearing, Mendelsohn reversed an order that would have allowed Pfizer to identify physicians who prescribed painkiller Celebrex to Tillery's clients.
"I was in error initially," he said. "I am not ordering that those records be produced."
Earlier this year he adopted a case schedule that Pfizer attorney Robert Shultz proposed, but the schedule didn't hold up.
Associate Judge Thomas Chapman took charge of the case long enough to discard Shultz's schedule.
Mendelsohn, at Tillery's request, then scheduled hearings four days apart on change of venue to Cook County and class certification.
Pfizer petitioned the Illinois Supreme Court to inject more time between the hearings.
Shultz argued that if Mendelsohn denied transfer and Pfizer prepared an appeal, Mendelsohn could certify a class action before Pfizer could file the appeal.
If Pfizer then succeeded in obtaining transfer on appeal, he argued, class certification would stand and the suit would proceed as a class action in Cook County.
Pfizer's petition remains pending at the Supreme Court.
Pfizer gained a victory on April 22, when Mendelsohn ordered Tillery to identify the physicians of his clients and produce their records.
Mendelsohn found the information relevant if not necessarily admissible.
Tillery moved for reconsideration and brought the motion to Mendelsohn on May 21.
Mendelsohn told Tillery his complaint alleged that Pfizer concealed risks of Celebrex from physicians.
He said, "You're saying the defendant knew the risks and never gave the information to plaintiffs or plaintiffs' physicians."
Tillery said, "It's really dealing with the entire country."
Mendelsohn asked if class representatives have to establish that they were susceptible to the ailments in the complaint.
Tillery associate Aaron Zigler said ailments didn't matter.
He told Mendelsohn to compare the fair value of the drugs to the sale price.
"They paid too much," Zigler said.
Tillery said, "They could have used it for everything."
"We need not prove why this was prescribed to a plaintiff," he said.
"It doesn't matter if they had a cardiovascular problem. Everybody in the class paid too much and it doesn't matter why the drug was prescribed."
Shultz said a consumer can't buy the drug without a prescription.
"Something has to take that plaintiff to the pharmacy and deception must figure in," he said. "They can't just start at third base and run home."
Mendelsohn said Pfizer asked for entire histories back to 1996.
Shultz said a protective order covered the request.
Mendelsohn said, "Why in God's name should he tell you this?"
Shultz said he offered to exclude records of former physicians.
"What caused a doctor to prescribe?" Shultz said. "I get to defend my client. I get to find out."
Mendelsohn said, "Is that a defense?"
Shultz said, "Absolutely," arguing that under the Avery decision of the Illinois Supreme Court, the claim of a class representative governs the class."
He asked, "What if he is not an adequate representative?"
Zigler said, "The guy doesn't need to know anything. He only needs to have purchased the drug."
He said expert testimony would establish the value of the drug.
"He wants plaintiffs and doctors to say what it's worth," Zigler said.
"It doesn't matter what they say," he said. "What matters is what the economist says."
Mendelsohn denied Pfizer's motion, holding that physician patient privilege applied.