Madison County Associate Judge Ralph Mendelsohn ordered Stephen Tillery of St. Louis to deliver medical records of class action clients to drug maker Pfizer.
At an April 22 hearing, Mendelsohn rejected Tillery's argument that he couldn't deliver the records because neither he nor his clients had them.
"We have never seen their medical records," Tillery told Mendelsohn.
His associate Aaron Ziglar said, "We don't need them to prove our case."
Pfizer attorney Robert Shultz of Edwardsville said he needed the records to prove his case, and Mendelsohn agreed.
"I do believe that the information that is requested by the defendant would possibly be relevant," Mendelsohn said.
He said he was discussing relevancy, not admissibility.
He said physician patient privilege would not apply.
Mendelsohn's order applies to Tillery clients Ricky Lott, Gerald Sumner, Sandy Becker and Mike Becker.
They allege that Pfizer concealed and suppressed information about cardiovascular side effects of painkillers Celebrex and Bextra.
They claim no personal injuries, instead seeking the difference between what they paid for the drugs and what they would have paid but for Pfizer's misconduct.
A motion from Tillery to certify a class action remains pending.
On Pfizer's side, a motion for transfer to Cook County remains pending.
Shultz figures he'll need the medical records in either court.
"We believe we are entitled to find out from their doctors why they prescribed this medicine," he said at Mendelsohn's hearing.
"Did our misrepresentations or concealment cause the doctor to prescribe the medicine or was there some other reason?" he asked.
"Such as, we tried a lot of other medicines. They didn't work.
"Such as, this was the best relief we could get.
"Such as, the other medicines that the patient had taken had severe gastrointestinal side effects. This one did not."
Shultz said he didn't plan to broadcast the records across the countryside.
He said there was a protective order and Pfizer has honored it every way.
"I've got to be able to find out how many times they filled the prescription, what they paid," Shultz said. "That's so fundamental."
In rebuttal Tillery said he produced records.
"I think there is some inadvertence on Mr. Shultz's part not knowing that," he said.
"Excuse me," Shultz said. "To my knowledge there was only a total figure that was produced."
Ziglar said, "We produced a printed receipt that showed how many times -"
Mendelsohn said, "A what, sir?"
Ziglar said, "A printed receipt that showed how many times it was purchased and the dates that it was purchased."
Ziglar said it didn't show any reimbursement by insurance because of the collateral source rule.
Mendelsohn asked why the rule would apply in discovery.
Tillery took over and said, "The collateral source rule, you're right, would apply at the time of actual formal introduction.
"To the extent that it just gives an end run around to violate the physician patient relationship, it certainly does apply."
He said it didn't matter how much insurance paid. "No dispute about it," he said.
"I dispute it," Shultz said.
Tillery said, "These records are presumed relevant under some circumstances because enterprising creative defense lawyers can come up with ways of all of these showing how it's possible under some circumstances to create relevancy."
"So what?" he said.
He said Shultz could depose a doctor, and he imagined the testimony.
"Oh, I knew all these conditions. I know everything," he said.
"I'm the world's smartest doctor," he said. "I knew everything that Pfizer was doing here but I thought under the circumstances I would prescribe the drug."
In his own voice he said, "Unless they can show that a single doctor prescribed such that he influenced pricing or contributed to do something – altered pricing, okay?
"It doesn't change any element in this case, none whatsoever.
"We're not arguing anything about whether there was some benefit received. We aren't saying that. That's factored in.
"Couldn't you go out and knock on the doors of 50 doctors in Madison County and ask them if they prescribed these drugs and what they thought of them?
"It is the defendant's actions which created the price unconscionability, not a particular doctor here or in Maine or in Fargo. It doesn't matter."
Shultz said, "The defense is not that the concealment or the suppression or whatever it was caused the price or caused the prescription.
"It is that the doctor made the decision."
Tillery said he could cite five cases about privilege and relevancy.
"Sorry," Shultz said. "I don't know what documents they are claiming privilege."
Mendelsohn said, "How come there was no privilege log?"
Ziglar said, "Your honor, we don't even have the medical records."
Tillery said, "They are not relevant to anything we are doing. We never requested them.
"Plaintiffs don't have them."
Mendelsohn said, "So you are telling me that nobody has the medical records?"
Tillery said, "The physician or hospital."
Mendelsohn said, "I'm talking about lawyer wise."
Tillery said, "We do not have them, your honor, absolutely do not have them."
Mendelsohn said the entire premise of the case was that Pfizer charged excessive prices in relation to fair market prices for the actual value of the drug.
He ruled in Pfizer's favor.
Shultz said he would write the order.