Painters and Allied Trades District Council 82 Health Care Fund v. Forest Pharmaceuticals, Inc. et al
Filing
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Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons, plaintiffs objections to the rulings by Magistrate Judge Bowler on plaintiffs motion to compel (Painters and Kiossovski) (Docket No. 750) and defendants motion to quash the third party subpoena (Painters)(Docket No. 843) are OVERRULED and those rulings are AFFIRMED.So ordered.(Caruso, Stephanie)
United States District Court
District of Massachusetts
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CELEXA AND LEXAPRO MARKETING AND )
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SALES PRACTICES LITIGATION
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PAINTERS AND ALLIED TRADES
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DISTRICT COUNCIL 82 HEALTH CARE )
FUND,
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Plaintiff,
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v.
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FOREST LABORATORIES, INC. and
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FOREST PHARMACEUTICALS, INC.,
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Defendants.
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In re:
DELANA S. KIOSSOVSKI and
RENEE RAMIREZ,
Plaintiffs,
v.
FOREST LABORATORIES, INC. and
FOREST PHARMACEUTICALS, INC.,
Defendants.
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MDL No.
09-02067-NMG
Civil Action No.
13-13113-NMG
Civil Action No.
14-13848-NMG
MEMORANDUM & ORDER
GORTON, J.
These cases arise out of the marketing and sales of the
anti-depressant drugs Celexa and Lexapro by defendants Forest
Laboratories, Inc., Forest Laboratories, LLC and Forest
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Pharmaceuticals, Inc. (collectively, “defendants” or “Forest”).
Plaintiffs Delana Kiossovski and Renee Ramirez (collectively,
“the Kiossovski plaintiffs”) and plaintiff Painters and Allied
Trades District Council 82 Health Care Fund (“Painters”)
(collectively “plaintiffs”) allege that defendants 1) engaged in
a fraudulent marketing scheme designed to induce consumers to
purchase Celexa and Lexapro for pediatric use in violation of
the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. §§ 1962(c) and (d), 2) were unjustly enriched, 3)
violated the Washington Consumer Protection Act (Kiossovski) and
4) violated the Minnesota Consumer Fraud Act and Minnesota
Unfair Trade Practices Act (Painters).
Pending before the Court are plaintiffs’ objections to two
rulings of Magistrate Judge Marianne B. Bowler on 1) plaintiffs’
motion to compel supplemental production of documents pursuant
to Fed. R. Civ. P. 26(e)(1) (Painters and Kiossovski) (Docket
No. 750) and 2) defendant’s motion to quash the third party
subpoena served on H. Lundbeck A/S (“Lundbeck”) (Painters)
(Docket No. 843).
For the reasons that follow, this Court will
overrule the objections and affirm the magistrate judge’s
rulings.1
1
For ease of reference, the Court will use the docket numbers
from the multi-district litigation docket, 09-md-02067-NMG.
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I.
Background and Procedural History
The early background and procedural history of these cases
are set forth in this Court’s prior Memoranda & Orders
addressing defendants’ motions to dismiss (Docket Nos. 32 and
62) and plaintiffs’ motion to certify a class (Docket No. 196)
in Painters and this Court’s prior Memoranda & Orders addressing
defendants’ motion to dismiss (Docket No. 28) and plaintiffs’
motion to certify a class (Docket No. 65) in Kiossovski.
A.
Plaintiffs’ motion to compel supplemental production
of documents pursuant to Fed. R. Civ. P. 26(e)(1)
Plaintiffs first object to Magistrate Judge Bowler’s denial
of their motion to compel a supplemental production of documents
pursuant to Fed. R. Civ. P. 26(e)(1).
This discovery dispute
arises from Forest’s production of two documents produced after
the close of discovery in advance of plaintiffs Fed. R. Civ. P.
30(b)(6) deposition.
The documents relate to the packaging
issue in a clinical study (“MD-18”) conducted by Forest to
determine the safety and efficacy of Celexa for the treatment of
depression in pediatric patients.
The MD-18 study was sponsored by Forest and conducted in
the United States between 2000 and 2001, enrolling subjects aged
7-17.
At the beginning of the study, Forest became aware that
some study subjects in the “active” treatment group received
bottles packaged with the pink citalopram pills sold
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commercially, rather than the white citalopram pills used for
the purposes of clinical studies.
In March, 2000, Forest
notified the study sites of the packaging error and instructed
them to return the bottles for the subjects who had not yet been
randomized.
Later that month, Forest notified the FDA of the
clinical supply packaging error and stated that the error had
the “potential to cause patient bias”, referencing the “eight
potentially unblended patients”.
In 2002, the FDA determined
that MD-18 was a positive study, supporting the conclusion that
Celexa was effective for pediatric use.
Fact discovery in Painters closed in July, 2016 and in
Kiossovski in January, 2017.
The parties agreed, however, with
the leave of this Court, to conduct a deposition pursuant to
Fed. R. Civ. P. 30(b)(6) to allow plaintiffs to inquire about
the packaging error.
Prior to that deposition, counsel for
Forest produced two documents detailing how the dispensing error
occurred in MD-18.
After the production of those documents,
plaintiffs sent a discovery letter seeking to reopen discovery
and requesting that Forest supplement its production to produce
all documents related to the packaging error pursuant to its
obligation to supplement discovery under Fed. R. Civ. P.
26(e)(1).
In March, 2017, after Forest refused to reopen discovery
and make supplemental productions with respect to the packaging
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error, plaintiffs filed a motion to compel supplemental
production of documents which Forest opposed later that month.
Magistrate Judge Bowler heard argument on the motion in April,
2017 and took the matter under advisement.
On May 10, 2017,
Magistrate Judge Bowler entered a memorandum and order denying
plaintiffs’ motion to compel.
Plaintiffs timely filed their
objections to that order shortly thereafter.
B.
Defendants’ motion to quash third party subpoena of
Lundbeck
Plaintiff Painters also objects to Magistrate Judge
Bowler’s order quashing its third party subpoena served on
Lundbeck.
That discovery dispute concerns a second clinical
trial conducted to determine the efficacy of Celexa for
pediatric use, Study 94404.
Study 94404 was conducted by
Lundbeck, the Danish pharmaceutical company which developed the
drug molecules and licensed them to Forest.
Lundbeck has produced documents in this litigation in
response to a subpoena served by plaintiffs in November, 2016.
In May, 2017, nearly one year after discovery closed in the
Painters action, Painters served a subpoena ad testificandum on
Lundbeck.
Forest moved to quash that subpoena in June, 2017,
suggesting that it violated this Court’s scheduling order
without good cause and that any information sought through the
subpoena would be duplicative.
On December 13, 2017, Magistrate
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Judge Bowler entered an electronic order allowing Forest’s
motion to quash.
Painters timely filed its objections to that
order on January 3, 2018.
II.
Review of Magistrate Judge Rulings
A.
Legal Standard
If a party timely objects to the non-dispositive rulings of
a magistrate judge on pretrial matters, the district judge must
modify or set aside any part of the disputed order that is
“clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a);
28 U.S.C. § 636(b)(1)(A).
As another session of this Court has
found,
[a] respect for this standard is important, given the
pivotal role that magistrate judges play in overseeing
the conduct of the sort of complex pretrial discovery
typified by this case.
Gargiulo v. Baystate Health Inc., 279 F.R.D. 62, 64 (D. Mass.
2012).
The “clearly erroneous” standard requires the district
judge to accept the factual findings and conclusions of the
magistrate judge unless, after reviewing the entire record, the
district judge has a “strong, unyielding belief that a mistake
has been made.” Green v. Cosby, 2016 WL 554816, at *1 (D. Mass.
Feb. 11, 2016)(citing Phinney v. Wentworth Douglas Hosp., 199
F.3d 1, 4 (1st Cir. 1999)).
Under the “contrary to law” requirement, the district judge
reviews pure questions of law de novo, see PowerShare, Inc. v.
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Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010), and factual
findings for clear error, Phinney, 199 F.3d at 4.
Mixed
questions of law and fact invoke a sliding scale of review
pursuant to which
[t]he more fact intensive the question, the more
deferential the level of review (though never more
deferential than the clear error standard); the more law
intensive the question, the less deferential the level
of review.
In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013)
(internal quotation marks omitted).
B.
Application
1.
Objections to Magistrate Judge Bowler’s Order
denying plaintiffs’ motion to compel supplemental
production of documents pursuant to Fed. R. Civ.
P. 26(e)(1)
In their objection to Magistrate Judge Bowler’s order on
plaintiffs’ motion to compel, plaintiffs contend that the order
relied on an incorrect statement of the law and that, contrary
to the order, the FDA is not the exclusive judge of safety and
efficacy.
Plaintiffs suggest that Magistrate Judge Bowler
ignored new evidence related to the packaging error that they
assert entitles them to further discovery.
Plaintiffs ask this
Court to reject Magistrate Judge Bowler’s order and compel
Forest to supplement its discovery responses to produce all
documents related to the packaging error.
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Forest rejects plaintiffs’ characterization of Magistrate
Judge Bowler’s order, submitting that her order is a
straightforward application of Fed. R. Civ. P. 26(e)(1).
Forest
disputes plaintiffs’ claim that the order broadly states that
all discovery related to MD-18 is irrelevant, instead stressing
that the order simply concludes that there was no basis to
reopen discovery.
Forest maintains that plaintiffs have already
conducted years of discovery on MD-18 and that additional
discovery will not lead to additional information on the issue.
Under Fed. R. Civ. P. 26(e)(1), a party who has made
disclosures under Rule 26(a) or has responded to another
discovery request, must supplement or correct its discovery
responses
[i]f the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise
been made known to the other parties during the discovery
process . . . .
Fed. R. Civ. P. 26(e)(1).
The duty to supplement, therefore,
applies only where the supplemental material has not been
otherwise made known to the requesting party. AVX Corp. v. Cabot
Corp., 252 F.R.D. 70, 77 (D. Mass. 2008).
Forest confirms its
already substantial production of documents related to the
packaging error, including the MD-18 study report, internal
correspondence related to the error and the MD-18 statistician’s
files.
Forest also recounts its responses to plaintiffs’
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requests for admission on the topic and the deposition testimony
of Dr. Laughren, a doctor employed by the FDA at the time of the
packaging incident.
Accordingly, Magistrate Judge Bowler’s order is neither
clearly erroneous nor contrary to law but rather reflects a
determination that the supplemental material requested by
plaintiffs would be cumulative to information already produced
by Forest in this litigation.
Contrary to plaintiffs’
suggestion, the order does not state that all discovery related
to MD-18 is irrelevant and the reasoning does not rely on a
judgment that the FDA is the exclusive authority with respect to
a drug’s safety or efficacy.
Forest satisfied its supplemental production obligation
under Rule 26 with the prompt production of two documents
discovered in the process of preparing for the Rule 30(b)(6)
deposition. Cytyc Corp. v. Tripath Imaging, Inc., No. 03-11142DPW, 2005 WL 1527883 (D. Mass. June 21, 2005) (holding that
plaintiff satisfied its supplemental obligations under Rule 26
by providing requested production “as soon as reasonably
possible after discovering the information”).
That supplemental
production does not trigger the broad reopening of discovery
that plaintiffs seek here.
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2.
Objections to Magistrate Judge Bowler’s Order
granting defendants’ motion to quash third party
subpoena of Lundbeck
In its objection to Magistrate Judge Bowler’s order on
Forest’s motion to quash, Painters complains that it began
efforts to serve the subpoena before the close of discovery and
that Forest was aware of those efforts.
Painters asserts that
it did not violate the scheduling order because it attempted
service during the discovery period and, in any event, good
cause exists for allowing a modification to allow Painters to
depose Lundbeck.
Forest disputes Painters’s characterization of the chain of
events, stating that although it did not object to Painters’s
attempt to depose Lundbeck during the discovery period, it did
not agree to any extension of discovery or exception to the
scheduling order.
Fed. R. Civ. P. 16(b)(4) provides that the scheduling order
in a case “may be modified only for good cause and with the
judge’s consent”.
Painters’s assertion that it was unnecessary
to file a motion to take the untimely deposition because of an
understanding among the parties does not suffice. See e.g.,
Objective Interface Sys., Inc. v. Vertel Corp., No. 06-mc-10192,
2006 WL 13627, at *1 (D. Mass. May 16, 2006) (denying the motion
to compel where the discovery deadline had passed and there was
no request for an extension and making clear that “the parties
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should not presume to amend court orders on their own”).
Although the Court acknowledges the difficulties faced by the
plaintiff in serving a subpoena given the complexities of the
Hague Convention, Painters is not entitled to reopen discovery
almost one year after the deadline, especially where they made
no attempt to amend the scheduling order.
Accordingly, Magistrate Judge Bowler’s order quashing the
subpoena was neither clearly erroneous nor contrary to law under
Fed. R. Civ. P. 72(a).
ORDER
For the foregoing reasons, plaintiffs’ objections to the
rulings by Magistrate Judge Bowler on plaintiffs’ motion to
compel (Painters and Kiossovski) (Docket No. 750) and
defendant’s motion to quash the third party subpoena (Painters)
(Docket No. 843) are OVERRULED and those rulings are AFFIRMED.
So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated January 24, 2018
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