St. Louis attorney Stephen Tillery claimed he could prove that drug maker Pfizer did business in Madison County, but his search for proof in phone books has turned up nothing but a wrong number.
Tillery found Pfizer in a Planet Pages directory for Madison and St. Clair counties, but according to Pfizer the number belonged to an employee at home, not to any Pfizer office.
He must connect Pfizer to Madison County to carry on a proposed national class action suit filed at the courthouse last year.
Plaintiffs Ricky Lott, Gerald Sumner, Sandy Becker and Mike Baldwin allege that Pfizer hid from consumers the risks in prescription drugs Celebrex and Bextra.
They claim no damage to their health. They seek the difference between what they paid and what they would have paid if they had known the risks.
Pfizer moved last year to transfer the suit for improper venue.
Madison County Associate Judge Ralph Mendelsohn has not ruled on the motion, but at a June 2 hearing he rejected a bid from Tillery to strike Pfizer's motion.
Squabbles at the hearing reminded Mendelsohn of divorce court.
Tillery associate Aaron Zigler and defense attorney Robert Shultz disagreed at the start over which motion Mendelsohn would hear.
Shultz said the motion to strike was not a separate motion but a defense to his motion.
Mendelsohn said, "Are you saying that with a straight face?" He said they would proceed with the motion to strike.
Zigler said even if venue was improper, the defense was waived if Pfizer did not bring the motion on or before the day of the defendant's first appearance.
He said plaintiffs served a summons on Pfizer March 7, 2005. "Thirty days is April sixth," he said. "The motion to transfer wasn't filed on this day. It's not anywhere close."
He said Pfizer removed the case to U. S. district court, which remanded it May 26, 2005. He said a five day extension might apply, allowing a June 1 appearance.
"They did not appear," he said. "They did not file an objection to venue."
Zigler said he and Shultz agreed on an extension to July 7, but on that date Pfizer moved to dismiss.
He said Pfizer filed the venue motion Aug. 23.
"…[i]f you were to create an exception for them for this venue purpose, frankly I think that Pfizer would come to regret it," said Zigler.
"We believe that we will be able to show that Pfizer is present in Madison County for the purposes of venue both by operating an office and by doing business here," he said.
He showed Mendelsohn a letter with a telephone listing for Pfizer in Edwardsville.
Mendelsohn said, "We are kind of going into the merits now of the venue motion. We have got a motion to strike because of the timeliness issue. That really is the only issue."
Shultz said that when Pfizer removed the case to federal court plaintiffs asked for a stay of proceedings until the court ruled on their motion to remand.
When federal court remanded the case, Pfizer moved for leave to appeal to the U. S. Seventh Circuit Court of Appeals, he said.
He also said the Seventh Circuit denied the motion Aug. 4, and Pfizer filed its venue motion in Madison County on Aug. 23.
Under the circumstances, "…there was no deadline in which to file our motion to transfer venue…," said Shultz.
He said a case management order of Aug. 24 gave Pfizer until Sept. 2 to supplement any motion to dismiss.
Zigler said an affidavit would prove he did not say what Shultz claimed he said at the case management conference. He said, "It says the exact opposite."
Shultz said, "I will tell your honor that we did not discuss venue. I will tell your honor that Mr. Zigler had the venue motion in his hand. He looked at it."
Mendelsohn said, "We're almost like a divorce court here now. It's like he said she said."
He said he would hear the motion to transfer venue. "I must agree with the defendant in this case," he said. "They did file what was necessary."
Tillery asked for an extension of time to counter Pfizer's claim that it did no business in Madison County.
He said, "We beg to differ and we are going to prove it once and for all…"
Shultz said they had resolved some question but they could not resolve a question about phone listings.
Mendelsohn said, "It can't be that complicated."
Shultz said it was. He said, "We searched our own offices. We searched the public libraries. We searched the SIU library."
Tillery prepared requests for admissions and sent them to Shultz.
Tillery asked if a number was listed under Pfizer in the 2002/03 Planet Pages. Shultz answered that Pfizer did not consent to the listing or authorize it.
He wrote that it was the home of a Pfizer employee.
Shultz denied knowledge of any Pfizer number in Planet Pages from 2004 to 2006.
He denied that a phone book listed a Maryville address and number for Pfizer from 2004 to 2006 but wrote that Pfizer was aware that an Internet search incorrectly associated Pfizer with a Maryville phone.
Tillery asked if Pfizer operated an "investigational site" in Edwardsville in 2004, 2005 or 2006. Shultz denied knowledge of any such operation.