LoConte et al v. Forest Laboratories, Inc.

Filing 245

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "For the foregoing reasons, plaintiffs objection to theruling by Magistrate Judge Bowler on plaintiffs motion tocompel (Docket No. 176) is OVERRULED and that ruling isAFFIRMED."Associated Cases: 1:09-md-02067-NMG, 1:14-cv-13848-NMG(Lima, Christine)

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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DELANA S. KIOSSOVSKI and
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RENEE RAMIREZ,
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Plaintiffs,
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v.
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FOREST LABORATORIES, INC.,
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FOREST LABORATORIES, LLC and
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FOREST PHARMACEUTICALS, INC.,
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Defendants.
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In re:

MDL No.
09-02067-NMG

Civil Action No.
14-13848-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of the marketing and sales of the
anti-depressant drugs Celexa and Lexapro by defendants Forest
Laboratories, Inc., Forest Laboratories, LLC and Forest
Pharmaceuticals, Inc. (collectively, “defendants” or “Forest”).
Plaintiffs Delana Kiossovski and Renee Ramirez (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.

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§§ 1962(c) and (d), 2) were unjustly enriched and 3) violated
the Washington Consumer Protection Act, RCW § 19.86.010 et seq.
Pending before the Court is plaintiffs’ objection to a
ruling of Magistrate Judge Marianne B. Bowler on plaintiffs’
motion to compel production of documents withheld for privilege.
For the reasons that follow, this Court will overrule the
objection and affirm the magistrate judge’s rulings.
I.

Background and procedural history
The early background and procedural history of this case

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 December, 2016, plaintiffs moved to compel the
production of 183 documents withheld by defendants on the basis
of the attorney-client privilege and the work product doctrine.
Magistrate Judge Bowler heard argument on that motion in
January, 2017 and entered an order denying plaintiffs’ motion in
May 2017.

Plaintiffs filed their timely objection to that order

on May 24, 2017.
Plaintiffs challenge Forest’s decision to withhold 183
documents dated between April and November, 2004, related to a
2004 Congressional probe investigating the use of antidepressants for children.

Plaintiffs claim that the attorney-

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client privilege was extinguished as to the 183 subject
documents under the crime-fraud exception.

In 2004, Congress

initiated a probe of the FDA and several drug manufacturers to
investigate the use of anti-depressants for children.

The

Subcommittee on Oversight and Investigations of the House
Committee on Energy and Commerce convened a hearing to review
the disclosure of clinical studies related to such drugs.

At

that hearing, Dr. Lawrence Olanoff, who was the Executive Vice
President of Forest, testified about two studies done by Forest
with respect to the efficacy of Celexa in the pediatric
population, MD-18 and Study 94404.
In the course of that testimony, Dr. Olanoff stated that
Forest has
[c]onsistently acted appropriately and in compliance with
all legal and regulatory requirements when informing
physicians about our products [and that] because the FDA
has not approved pediatric labeling for our products,
Forest has always been scrupulous about not promoting the
pediatric use of our antidepressant drugs, Celexa and
Lexapro.
In a later deposition, Dr. Olanoff acknowledged that the
statement he gave regarding off-label promotion “was later
demonstrated to be incorrect”.
was provided to him by counsel.

He submitted that the statement
Plaintiffs assert that the

privilege was therefore extinguished as to the communications
between Forest and its counsel in preparation for the
congressional testimony and for Dr. Olanoff’s testimony itself.

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II.

Review of the May, 2017 Ruling
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.
Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010), and factual
findings for clear error, Phinney, 199 F.3d at 4.

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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

In their objection to Magistrate Judge Bowler’s order,
plaintiffs assert that there is a reasonable basis from which to
conclude that Forest used the advice of counsel to facilitate
the public disavowal of their off-label promotion.

Plaintiffs

suggest that the magistrate judge’s order improperly relied upon
an in camera review of the withheld documents.
Forest responds to plaintiffs’ objection by emphasizing
that plaintiffs did not establish a reasonable basis from which
to conclude that Forest’s counsel was retained or used to foster
a crime.

Forest contends that the magistrate judge’s order did

not rely solely upon the in camera review of the documents at
issue, but rather pointed to other facts that led the magistrate
judge to conclude that there was no reasonable basis for finding
that Forest intended to use the advice of counsel to facilitate
a crime.

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To invoke the crime-fraud exception to the attorney-client
privilege, the party challenging the claim of privilege must
make a prima facie showing
(1) that the client was engag[ed] in (or was planning)
criminal or fraudulent activity when the attorney-client
communications took place and (2) that the communications
were intended by the client to facilitate or conceal the
criminal or fraudulent activity.
In re Grand Jury Proceedings, 417 F.3d 18, 22-23 (1st Cir. 2005)
(citing In re Grand Jury Proceedings (Violette), 183 F.3d 71, 75
(1st Cir. 1999)) (emphasis in original).

To make that showing,

the movant must demonstrate that
there is a reasonable basis to believe that the lawyer’s
services were used by the client to foster crime or fraud.
Id. at 23.

The “reasonable basis” standard is intended to be

“reasonably demanding” and the party must present more than mere
speculation or a distant likelihood of collusion.
The Court agrees with Forest.

Id.

In her decision, Magistrate

Judge Bowler did not, as plaintiffs suggest, base the ruling on
the in camera review of the documents at issue.

The order

concludes that “[t]he facts, including the in camera documents
themselves, decidedly do not provide a reasonable basis” to make
the finding that Forest used its counsel to foster a crime or
fraud.
Although plaintiffs document Forest’s consideration and
conduct with respect to the criminal and civil investigations of

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off-label promotion of Celexa for pediatric use, they fail to
demonstrate that there was a reasonable basis to conclude that
communications with counsel were intended to facilitate criminal
activity.

Plaintiffs attempt to conflate the distinction

between Forest’s civil settlement, covering conduct between 1998
and 2005 for which Forest did not admit liability, and the
resolution of the criminal violations which occurred between
1998 and 2002.

Plaintiffs fail to demonstrate that Forest was

engaged in or planning criminal activity at the time of Dr.
Olanoff’s testimony in 2004. See, e.g., Chevron Corp v. Shefftz,
754 F. Supp. 2d 254, 267 (D. Mass. 2010) (“Petitioner has not
presented evidence that Respondent knew of an alleged fraud.”).
Plaintiffs rely heavily on Dr. Olanoff’s deposition
testimony but on that occasion Dr. Olanoff stated that he only
later learned that his Congressional testimony contained
incorrect information.

Plaintiffs do not present evidence that

would suggest that Dr. Olanoff or Forest intended to conceal
criminal activity at the time counsel advised Forest on his
appearance before Congress.

Accordingly, they have not made a

prima facie showing that Forest intended to use the advice of
counsel to conceal criminal activity.

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ORDER
For the foregoing reasons, plaintiffs objection to the
ruling by Magistrate Judge Bowler on plaintiffs’ motion to
compel (Docket No. 176) is OVERRULED and that ruling is
AFFIRMED.

So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated January 2, 2018

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