Alexander v. Abbott Laboratories Inc

Filing 181

ORDER regarding discovery dispute held on 10/22/2013. Signed by Magistrate Judge Stephen C. Williams on 10/28/2013. Associated Cases: 3:12-cv-00052-GPM-SCW, 3:12-cv-00053-GPM-SCW, 3:12-cv-00054-GPM-SCW, 3:12-cv-00055-GPM-SCW, 3:12-cv-00056-GPM-SCW, 3:12-cv-00057-GPM-SCW, 3:12-cv-00163-GPM-SCW, 3:12-cv-00694-GPM-SCW, 3:12-cv-00824-GPM-SCW, 3:12-cv-00978-GPM-SCW, 3:12-cv-01091-GPM-SCW, 3:12-cv-01216-GPM-SCW, 3:13-cv-00082-GPM-SCW, 3:13-cv-00134-GPM-SCW, 3:13-cv-00135-GPM-SCW, 3:13-cv-00317-GPM-SCW, 3:13-cv-00338-GPM-SCW, 3:13-cv-00426-GPM-SCW, 3:13-cv-00480-GPM-SCW, 3:13-cv-00622-GPM-SCW, 3:13-cv-00758-GPM-SCW(anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
B.P. a minor, by DAWN FRAGNOLI,
individually as parent and next friend,
Plaintiff,
J.B., a minor, by LINDA LEJUNE,
individually as legal custodian and next
friend,
Plaintiff,
vs.
ABBOTT LABORATORIES, INC.,
Defendant.

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Case No. 13-cv-324-SCW

Case No. 12-cv-52-GPM
Case No. 13-cv-326-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
On October 22, 2013, the Court held a discovery dispute hearing on the parties various
submitted discovery issues. The following memorializes the Court’s findings and rulings at that
hearing.
A.

Certification of Completion of Production (Issue # 98)
Plaintiffs noted that they previously asked from certain documents from the RIMS database,

but that Abbott found that several documents were in the possession of the Department of Justice
(DOJ). Abbott indicated that there are 19 files on the RIMS report that remain in the possession of
the DOJ. Plaintiffs are also concerned that the possession of some documents by the DOJ means
that there are other documents that would have been responsive and already provided to Plaintiffs had
they not been in the possession of the DOJ. The Court DIRECTS Abbott to confirm the existence
of the 19 files and provide them to Plaintiffs absent any objection on the grounds of privilege.

Abbott will also search to determine if there are any documents that were sent to the DOJ that would
not have already been provided to Plaintiff.
B.

Additional Custodial Issues (Issue #99)
Abbott recently filed a Motion for Discovery Memorandum Regarding Production of

Additional Custodial Files, objecting to providing custodial files for four Abbott employees previously
requested by Plaintiff. At the hearing, the parties informed the Court that they had resolved the issue
regarding the additional custodial files. Thus, the Court FINDS AS MOOT Abbott’s Motion
Regarding Production of Additional Custodial Files (Case No. 13-324 Doc. 86 and Case No. 13-326
Doc. 77).
C.

Consolidated Plaintiffs’ 30(b)(6) Deposition Notice and Request (Issue #100)
Plaintiffs take issue with Abbott’s designated witnesses for 30(b)(6) depositions. On October

8, the Court Ordered Abbott to designate witnesses pursuant to Plaintiffs’ 30(b)(6) deposition notice.
Abbott responded with three designated witnesses on a total of 15 of 35 topics, leaving 20 topics
without designated witnesses. Abbott is DIRECTED to designate deponents for the remaining
topics by October 31, 2013. With those designations, Abbott should provide available dates for
depositions of those witnesses. Abbott shall also have until October 23, 2013 to provide dates for
the other two designated deponents previously provided to Plaintiffs.
D.

Abbott’s Response to Consolidated Plaintiffs’ Interrogatory No. 12 (Issue #101)
Plaintiffs take issue with Abbott’s disclosure of scientific studies.

The Court’s

October 8 Order directed Abbott to identify all scientific studies it has conducted and funded.
Abbott provided Plaintiffs with 38 pages of studies but informed Plaintiffs that they could not
determine if all of the studies were funded by Abbott. Plaintiffs also sought the bates ranges for the
regulatory file where Abbott located the studies. The Court DIRECTED Abbott to provide the
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bate ranges for where in the regulatory files Abbott found the references to these studies. Abbott will
have until November 5, 2013 in which to provide this supplemental information.
E.
Identification of a Complete List of Annual, Periodic, and Supplemental Drug Reports
(Issue #104).
Plaintiffs take issue with the production of the regulatory file from the RIMS database.
Plaintiffs argue that there is missing information from the database and that the regulatory files are out
of order. Plaintiffs point out that there are no correspondence from the years 2004 and 2010 through
2013. Plaintiffs also note that there is sporadic information for the years 2005-2009. Plaintiffs argue
that the regulatory file is not complete and that while drug companies keep this type of information in
chronological order, the records provided to them were “a mess.” Abbott notes that years 2011-2013
were not produced, but other years should be in the documents provided. Abbott argues that the
documents presented were not out of order and were presented as they were maintained in the
ordinary course of business. The Court DIRECTS Defendants to look into the issue of whether
there are regulatory files kept on computer files and to provide those files to the extent that they exist.
As to the issue of documents being out of chronological order, these documents were produced a long
time ago and whether they are not being kept in compliance with FDA requirements is not before this
Court. The Court will not order any further discovery requiring Abbott to further categorize the
documents already produced in the normal course of business. As to the electronic documents,
Abbott is to report to Plaintiffs on the matter by October 31, 2013.
F.

Abbott’s Response to CP Rog. No. 7 (Issue #95)
Next, the Court took up Plaintiffs’ discovery issue in which Plaintiffs’ allege Abbot

improperly responded to their request to produce sales figure data doing back to 1991. Plaintiffs
wanted total sales figures but were provided with “net sales” and no explanation of what “net sales”
meant. Abbott indicated that it would provide the gross sales by October 25, 2013. The parties are
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instructed to meet and confer on the issue of the definition of “net sales”.
G.

Production of Performance Reviews (Issue #96)
The Court is informed that there is no longer a dispute about the production of

performance reviews for Abbott witnesses prior to deposition. The parties have worked out an
agreement and will provide performance reviews for witnesses for the time before they worked on
Depakote and reviews for the time period that they worked on Depakote. Abbott agrees to provide
the performance reviews in advance of the depositions.
H.

Abbott’s Lack of Production of IMS Data (Issue #71)
Plaintiffs seek IMS data from Abbott for Plaintiffs’ prescribing physicians extending beyond

what was proscribed in the DFS, up to the present. Plaintiffs believe this information would be
relevant to show the habits of the prescribing doctors in prescribing Depakote after being given
revised warnings. As Plaintiff has articulated the relevance of these records, the Court ORDERS the
production of this information. Abbott shall have fifteen days, or up to and including November 6,
2013 in which to produce this information. For the one doctor who is already scheduled for a
deposition the first week of November, Abbott shall provide the IMS data two days prior to the
deposition.
I.

Identification of Documents Reviewed in Preparation for Deposition (Issue #105)
The parties dispute whether Abbott should be required to produce all documentation

reviewed by their witnesses prior to their scheduled depositions. Abbott argues that the documents
would be attorney work product and should not be disclosed. The Court will allow simultaneous
briefing on the matter. Briefs for both parties are due on October 30, 2013 and should be no longer
than five pages.

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J.

Additional Document Searches Arising out of Spath Deposition (Issue #106)
Plaintiffs note that upon taking Mrs. Spath deposition, Spath testified that Abbott’s database

contains “Usage in Pregnancy” response letters and “Dear Healthcare Professional and “Dear
Consumer” letters regarding the usage of Depakote while pregnant. Spath testified that there were 15
different versions of the “Usage in Pregnancy” letter and that it could be determined through the
database who wrote the letter and the different versions of the letter. The database could also show
the number of patients who received those letters. Abbott notes that the letters have been produced
but does not believe that the other information, including information about the individuals who
authored the letters and the data on how many patients have called inquiring about usage of Depakote
during pregnancy, has been formally requested by Plaintiffs. The Court DIRECTS Abbott to report
to Plaintiff no later than October 29, 2013 on the issue of whether all versions of these letters have
been produced and provide the bates ranges for those letters. The Court INSTRUCTS Plaintiffs
that they may put out a request for the other information, but the Court will not expedite the response
deadline for that request.
K.

Proper Scope of Deposition Inquiry Regarding Off-Label Marketing (Issue #107)
Plaintiffs inform the Court that on October 10, 2013, Abbott sent Plaintiffs a letter

attempting to limit the scope of deposition testimony of its witnesses regarding off-label marketing of
Depakote and the DOJ’s investigation into Abbott’s marketing practices. Abbott seeks to limit
Plaintiffs’ line of questioning in the depositions to issues related to women of childbearing age.
Abbott also seeks to prohibit questioning regarding a witness’s role in the DOJ investigation.
Plaintiffs inform the Court that they do not plan on asking questions about a witness’s grand jury
testimony or conversations with the DOJ. The Court INSTRUCTS the parties that it will not
restrict the Plaintiff to questioning in depositions, beyond what the parties have agreed to (i.e. grand
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jury testimony and interviews with the DOJ). The Court RESERVES RULING on any harassing
questions or repetitive questions to the witnesses until the time that such an issue arises.
L.
Abbott’s Supplemental Response to Consolidated Plaintiffs’ Interrogatory No. 14
(Issue #108)
The parties inform the Court that this topic is no longer at issue as the parties have
come to an agreement on the matter. Abbott will provide a response to the Interrogatory by October
25, 2013.
M.
Abbott’s Supplemental Response to Consolidated Plaintiffs’ Interrogatory No. 10
(Issue #109)
Plaintiffs seek a response to their interrogatory which asks Abbott to provide an
explanation for each of its responses to their Requests for Admissions #171-190. Plaintiffs had
provided reworded versions of Requests to Admit #4-13 upon Order of this Court but Abbott
objected to many of the Requests on the grounds that the definitions to key words are confusing and
could have many meanings. Abbott finds definition issues in Request to Admit #’s 171, 172, 173,
178-84, 186, 189, and 190. The Court DIRECTS the parties to meet and confer on the definitions at
issue in the Requests. Plaintiff may either indicate to Abbot how those terms should be defined for
purposes of Abbott’s answer or the parties may meet and confer on the definitions with Abbott. To
the extent that Abbott needs to clarify its Answer based on the lengthy time period sought in the
requests, Abbott may qualify its response with clarifications regarding timing.

Abbott has

twenty-one days after the parties agree upon definitions to respond to the requests to admit.
N.

Scheduling Treating Physician Depositions (Issue #110)
Abbott informs the Court that it requested from Plaintiffs on October 1, 2013, dates in

which Abbott could take depositions for the treating physicians of Plaintiffs. Abbott informs the
Court that as of this date, Plaintiffs have given them dates for only one physician. Plaintiffs indicate
that they will be able to provide deposition dates for most of the doctors within a few days but are
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having trouble contacting Dr. Isaacs for his availability. The Court ORDERS Plaintiffs to provide
Abbott with deposition dates for the doctors by October 25, 2013. If Plaintiffs are unable to provide
dates for Dr. Isaacs by October 25th, then Abbott may attempt to contact Dr. Isaacs on its own for
deposition dates or subpoena him.
O.

Scheduling Depositions for J.B. and J.B’s Family (Issue #111)
Abbott informs the Court that it takes issue with the dates provided by Plaintiffs for

the depositions of Linda LeJeune, J.B., Vincent LeJeune, Warren B., and Kathy Buffington. Abbott
indicates that Plaintiffs offered to produce all five witnesses between December 4-6, 2013. Abbott
would like dates of availability in November. The Court, however, DENIES Abbott’s request to
move up the Plaintiff’s and Plaintiff’s family members’ deposition dates. The depositions will take
place on December 4-6.
P.

Authorizations to Collect Records Regarding Warren B. (Issue #112)
Abbott seeks authorizations to collect medical, employment, insurance, and

educational records related to Warren B, J.B.’s biological father, in advance of his deposition. Abbott
believes that the biological father’s own physical and mental health and cognitive abilities are relevant
in this case. Abbott notes that records have shown that Warren B. has ADD which is also something
that J.B. suffers from. Abbott also notes that Warren B. was a nurse at a nursing home and would
have medical knowledge about certain drugs, which could be relevant to what he understood when the
doctor warned them of the risks associated with Depakote. Plaintiffs indicate that they will update
the fact sheets with Warren B.’s medical history, medical records, and discussions with the doctor
about Depakote. Plaintiffs are also DIRECTED to provide: dates and location of jobs Warren B.
held as well as job descriptions, description of education including degrees and certifications up until
the time of J.B.’s birth. Plaintiffs are also DIRECTED to provide authorizations for medical
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records.

At the hearing, the Court declined to order Plaintiffs to provide authorizations for

employment records. However, upon further consideration, the Court DIRECTS Plaintiffs to also
provide authorizations for Warren B.’s employment records up until the time of J.B.’s birth. Plaintiffs
have until November 1, 2013 in which to supplement those fact sheets.

IT IS SO ORDERED.
DATED: October 28, 2013.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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