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1. Benicar Maker Says NJ Law Limits Witness Coaching

   Mar 28, 2016 | Law360

   By Jeannie O'Sullivan
   
   
   ...In defending their motion to preclude the communications, known as woodshedding, the pharmaceutical companies cited multidistrict litigation involving Johnson & Johnson’s pelvic mesh and Novartis Pharmaceutical Corp.’s bone drugs Aredia and Zometa, cases in which judges restricted doctor-plaintiff communications.

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Online Sources

1. Benicar Maker Says NJ Law Limits Witness Coaching

   Mar 28, 2016 | Law360

   By Jeannie O'Sullivan

    Daiichi Sankyo Inc. and Forest Laboratories Inc. told a federal judge Monday that New Jersey case law supports their requested restrictions to communications between the patients suing them over the alleged side effects of the blood pressure drug Benicar and the patients’ treating physicians.
   
   The pharmaceutical companies said in a reply brief that cases in New Jersey Superior Court — the venue for the parallel Benicar litigation in state court — are “clear” in limiting that type of witness coaching, or scrapping the communications completely.
   
   Facing accusations that Benicar caused gastrointestinal injury, the companies contend it’s critical that the doctors, whom they characterize as key witnesses, remain independent and free of influence by ex parte presentations from counsel on either side before deposition.
   
   “New Jersey courts addressing this issue have either limited those contacts to discussions regarding the plaintiff’s treatment and medical condition, just as is being requested by defendants, or they have prohibited them altogether,” said the brief replying to the plaintiffs’ opposition.
   
   In defending their motion to preclude the communications, known as woodshedding, the pharmaceutical companies cited multidistrict litigation involving Johnson & Johnson’s pelvic mesh and Novartis Pharmaceutical Corp.’s  bone drugs Aredia and Zometa, cases in which judges restricted doctor-plaintiff communications.
   
   The plaintiffs’ attempt to distinguish the New Jersey Superior Court’s decision in In re Pelvic Mesh/Gynecare Litigation in 2013 and Gaus v. Novartis in 2009 “rings hollow,” the defendants in the instant suit said. 
   
   The plaintiffs had claimed the pelvic mesh judge’s decision was based upon a finding that there were limited number of experienced specialists to serve as witnesses, the brief said.
   
   But the pelvic mesh judge had also considered the plaintiffs’ arguments that the defendants’ pharmaceutical sales reps had access to treating physicians for marketing purposes, which was “very different from a plaintiff lawyer trying to ‘prepare’ a doctor for a deposition,” the brief said.
   
   The plaintiffs had said Gaus was distinguishable because the motion called for limits to the defense counsel’s, not plaintiff counsel’s, contacts with treating physicians, the brief said. Yet the court in the Gaus case “still held that ‘in the interest of fairness to all, no party — plaintiffs nor defendants — shall engage in ex parte contacts with plaintiffs’ treating physicians or influence the deposition or trial testimony of plaintiffs’ treating physicians,’” the brief said.
   
   The plaintiffs also mischaracterized the New Jersey Supreme Court’s 1985 decision in Stempler v. Speidell as the “seminal New Jersey case” on this topic, the brief said, because that case addressed limitations on the defendants’ counsel’s contacts with treating physicians.
   
   “Given the clarity in the New Jersey law, it is highly likely that should this court deny defendants’ motion, then the federal court litigation and state court litigation will have different rules on this issue,” the brief said.
   
   Daiichi and Forest also attacked the plaintiffs' reliance In re Vioxx Products Liability Litigation in Louisiana federal court, calling the 2005 decision “inapplicable” because it only addressed whether plaintiffs’ counsel should be completely prohibited from engaging in ex parte communications with treating physicians.
   
   In opposing the pharmaceutical companies’ March 9 motion to preclude woodsheding, the plaintiffs had said in a March 21 filing that the defendants “have not, and indeed cannot, cite to a single example of plaintiffs’ counsel acting improperly."
   
   Representing the plaintiffs, attorney Adam Slater told Law360 that it was “interesting” that the defendants hadn’t focused on two ongoing federal cases — In re: Testosterone Replacement Therapy Products Liability in Illinois and In re: Xarelto Products Liability Litigation in Louisiana — in which judges this month refused to limit communications between plaintiffs and their own physicians.
   
   Representatives for the defendants didn’t immediately respond to requests for comment Monday.
   
   The suits claimed Daiichi designed Benicar in a defective manner and failed to warn users that it could cause chronic diarrhea, nausea, malnutrition, dehydration and weight loss. Forest is accused of promoting Benicar alongside Daiichi.
   
   The U.S. Food and Drug Administration warned in 2013 that Benicar could cause a condition known as spruelike enteropathy, which includes severe and chronic diarrhea. It mandated that the drug's warning labels be changed to include the condition.
   
   At the time the FDA made its Benicar warning, it had identified 23 serious cases of late-onset diarrhea among users of the drug in its adverse event reporting system. According to the complaint, about 1.9 million patients received a prescription for Benicar or a similar drug in 2012 alone.
   
   The widespread use of the drug and the potential for more individual suits spread across multiple jurisdictions weighed in favor of centralization, plaintiffs argued.
   
   In April, the U.S. Judicial Panel on Multidistrict Litigation centralized 15 suits against Daiichi Sankyo and Forest Laboratories and transferred them to New Jersey federal court.
   
   There are 67 cases pending in state court, court records show.
   
   The plaintiffs are represented by Mazie Slater Katz & Freeman LLC, Robins Kaplan LLP, Yale & Baumgarten LLP, Spangenberg Shibley & Liber LLP, Levin Papantonio Thomas Mitchell Rafferty & Proctor PA and Lieff Cabraser Heimann & Bernstein LLP, among others.
   
   The defendants are represented by Drinker Biddle & Reath LLP.
   
   The case is In Re: Benicar (Olmesartan) Products Liability Litigation, case number 2606, in the U.S. Judicial Panel on Multidistrict Litigation.
   

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