City of Winter Haven v. Cleveland Indians Baseball Company Limited Partnership

Filing 605

EXHIBIT 3

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TRANSCRIPT OF PRETRIAL CONFERENCE

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION Docket No.6:06-MD-1769-Orl-22DAB . . . . . . . . . . . . . . .. IN RE: : SEROQUEL PRODUCTS LIABILITY : LITIGATION : MDL DOCKET No. 1769 : : ALL CASES : : . . . . . . . . . . . . . . .:

Orlando, Florida July 27, 2007 9:30 a.m.

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BEFORE THE HONORABLE DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE AND BEFORE THE HONORABLE ANNE C. CONWAY UNITED STATES DISTRICT JUDGE

APPEARANCES:
For the Plaintiffs: Paul Pennock Larry M. Roth

Scott Allen F.Kenneth Bailey Camp Bailey E. Ashley Cranford Dennis Canty Lawrence Gornick Lezzlie Hornsby Glenn Kramer Fletch Trammell

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Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription.

For the Defendant AstraZeneca: Fred Magaziner Stephen J. McConnell James Freebery
Robert Ciottai

Shane Prince Liz Balakhani Meghen Rohling

Court Reporter:

Sandra K. Tremel

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mooted out for today. THE COURT: We will table that one.

Next item is issues about production for prescriber information. MR. ALLEN: plaintiffs. Yes, Your Honor, Scott Allen for

I'd like to address this matter.

We did send a letter to counsel for the defense, AstraZeneca, on the 24th and we met this morning to discuss some of these issues concerning the prescriber information. The first issue we had, and I think it's

important for the record to get the agreement on the record, otherwise it will not be enforceable, is when they gave us the call note from the sales force that called on the initial doctors in these first case specific depositions that are coming up, call them up notes where I guess what I learned is called TIFF format and they were cut off. So the notes had been cut off mid sentence. I

did not have complete copies of the notes.

We have been

told this morning, and we'd like to verify for the record that counsel for the defense when they provide us the call notes for the doctors from the sales representatives will now be producing these electronically in what I understand is some type of Excel spreadsheet. We will not have --

they'll also produce them in the format that they filed them with me last week, but they'll also being producing

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 them where all the call notes are present and they read across a line. Because the call notes themself not only

were they cut off in mid sentence, I couldn't determine the date of the call or the name of the sales representative that called on the doctor. agreed on that. Correct, Mr. Magaziner? We have agreed. I just want to I think we

MR. MAGAZINER:

clarify one thing, Your Honor. databases.

These call notes exist in

What we were trying to do is print the

database in a way that made it intelligible, but it's many, many columns wide. So if it became a real printing

problem what we have agreed to do is give the call notes in question to the plaintiffs in an electronic form so they could screen it on their computer and they can manipulate through the various columns. What I want to clarify is that Mr. Allen is not expecting us to keep fussing with the printed version of it. If we give him the electronic version that gives, has

all the columns in it, we don't have to keep trying to figure out some way to print this whole thing in a format that makes it easy to read in hard copy. THE COURT: Are you giving it to him in the same

way that's stored on your -MR. MAGAZINER: THE COURT: Yes.

-- server.

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. MR. MAGAZINER: I don't know if it's -- I think

we lift it from the database and we have it in an Excel spread sheet. So it's essentially the same thing and he I'm not

can go through all the columns of information. sure if that answers Your Honor's question. THE COURT: MR. ALLEN:

Where's Mr. Jaffe when we need him? That's exactly what I'm saying, Your

And I've leveled with the magistrate all along and

the Court I think in the last hearing, I am the person that will be taking these depos, but I'm not a computer person, for lack of a better word. And all I know is I

would like the information in a usable fashion complete where I can read all the notes, determine the date and determine the sales rep, determine the events that transpired. And I would like it -- I think the Court had

a good question, is it going to be produced as it is in your -THE COURT: I don't know how you keep them, I

suspect these are going to be an extract from a database. MR. MAGAZINER: Right. The reason I didn't

respond to Your Honor's question by saying yes is because as I understand it, the way a database like this is, is a very huge -- actually there are three databases, are huge amounts of database. spreadsheet format. It is not kept in an Excel What we do is extract it, all the

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 readable. MR. MAGAZINER: MR. ALLEN: fine, Your Honor. We have other issues concerning the product of the call notes and the information made the subject of this Court's case management order number 4, in particular, II: Scope of case specific discovery. As you know at the last hearing, Your Honor, I brought up the issue of the fact that we believe that fundamental fairness and due process in order to properly examine the doctors. It was fundamentally needed that we That's all I was trying to say. information -THE COURT: Make it into an Excel file. Right. And give that

MR. MAGAZINER:

information to Mr. Allen, electronically to Mr. Allen and other plaintiffs, of course, electronically. THE COURT: You only have do it one way if it's

If I get it readable, that will be

had all of the information that was provided to the sales force, that was provided to the physicians and all of the call notes, all of the call notes which are notes that the sales representatives keep electronically on either the Touchstone, SnapPharma or Compass database. They

literally transcribe the notes after they meet with the doctor and they are sent into a database. We have all of

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some of the -- of the arguments you were making last night. It was my intention when I put that footnote in,

is the depositions are going to go forward and if it turns out that defendants have things it becomes obvious that as they examine the witness or comes out later, that they had pertinent to the appropriate examination of the witness and you didn't get it in advance, then sanctions are going to be imposed. Those depositions may be stricken or other But it's up to the defendant

sanctions will be imposed.

to give you that stuff, and if you don't have it, and it turns out, like I say, they're using some things you haven't seen, or it's clear that there are things, then there will be a day of reckoning on it. MR. ALLEN: Yes, sir. And let me -- and Scott

Allen's position on behalf of the plaintiffs, Your Honor, when in fact it is apparent from the call notes themselves before I begin this process, I can read the call notes and I can determine that there's clearly information that they shared with the doctor that they had note shared with us already, it seems to me to be a futile exercise of massive time and expense. For the example I have here, I have to go to Ohio and we have other call notes and I didn't want to sit there and read call notes to Your Honor, but I have an example. I can tell this Court right now from the call notes I read

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 entitled -- they're trying to increase their prescribing of the doctors. That's why the sales reps go in there. So the testimony is

That's not what Scott Allen says. that.

They didn't give me new prescribing history. just gave me the total prescriptions.

They

And so I'm -- I

believe I ask this Court to order them to do what you have already done in CMO number 4 is to give me both new and old prescriptions of not only Seroquel but other atypical antipsychotics, and this company has given me the TRX which is total prescriptions I believe of the other antipsychotics. And I asked Mr. Paulson why that was And he told me why.

important and I could go at length.

But they haven't given me the IMS or the prescribing data. So in conclusion, Your Honor, here's what I ask for: Before I go out and begin this process of taking doctors' depositions and sales reps' depositions, I ask that this Court order that CMO number 4 be complied with in full. It seems wrong to cost us time and expense to go down that road without -- when it's not necessary on the face of their own notes. I ask that they -- all the call notes I

not limited in time for the reasons I have stated.

asked that they give us all the prescribing data for not limited in time for the reasons I stated. I ask that they

give us all of the videos and handouts they gave to the

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 more quickly than the rules require or contemplate, I'm pretty proud that we can do that. Honor is disappointed with us. quickly -THE COURT: I'm going to bait you on whatever I don't know why Your

But we're going do it as

hook you find yourself with respect to these first five or 15 doctors. And I warn you now that it sounds to me like And with respect to those

you have misinterpreted CMO4.

cases, if the depositions go forward and there's not been compliance, as I said at the last hearing and in the order, there will be a day of reckoning on that. MR. MAGAZINER: I understand that. To be

perfectly clear, our lawyers who are taking those depositions are not going to be having access to anything other than what we have given plaintiffs. It's not like

we have some secret trove of information about these doctors that's going to be available to our lawyers deposing the lawyers and not available to the plaintiffs. THE COURT: None of your deposing lawyers have

looked at any of the sales or marketing materials? MR. MAGAZINER: true, yes. I would think that's probably

I don't know that none of our deposing lawyers

have ever looked at a single sales or marketing material. Our lawyers -- are we in a position now when we take a deposition of a doctor on August 20 to give to our lawyer