Brigham Young University et al v. Pfizer et al
MEMORANDUM DECISION denying 9 Motion to Quash. Signed by Magistrate Judge Brooke C. Wells on 04/24/2012. (asp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BRIGHAM YOUNG UNIVERSITY, a Utah
Non-Profit Education Institution; DR.
DANIEL L. SIMMONS, an individual,,
PFIZER, INC., a Delaware Corporation, G.D.
SEARLE & COMPANY, a
Delaware Corporation, G.D. SEARLE LLC, a
Delaware Limited Liability Company,
MONSANTO COMPANY, a Delaware
Corporation, and PHARMACIA
CORPORATION, a Delaware Corporation,
MEMORANDUM DECISION AND ORDER
DENYING PLAINTIFFS’ MOTION TO
Case No. 2:12-mc-143 TS BCW
Transferred from USDC Western Dist of OK
District Judge Ted Stewart
Magistrate Judge Brooke Wells
Before the Court is Plaintiffs Brigham Young University and Dr. Daniel Simmons
(collectively “BYU”) Motion to Quash. 1 BYU moves to quash
the Defendants Pfizer, Inc., G.D. Searle & Company, G.D. Searle LLC, Monsanto
Company, and Pharmacia Corporation’s (collectively “Pfizer”) (1) Subpoena to
Testify at a Deposition in a Civil Action; and (2) Subpoena to Produce
Documents, Information, or Objects or to Permit Inspection of Premises in a Civil
Action served on third-party DNA Solutions, Inc. (“DNA Solutions”), an
Oklahoma corporation. 2
Previously this Court denied BYU’s motion. 3 BYU then filed a Motion for
Reconsideration arguing that it did not receive notice of Pfizer’s opposition memorandum and
Docket no. 9. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the
District of Utah, the Court has concluded that oral argument is not necessary and will determine the motion on the
basis of the written memoranda. See DUCivR 7-1(f) (2011).
Mtn. p. 4-5.
Order dated 3/23/12, docket no. 10. The Court set forth the facts of this case in that decision and does not repeat
thus did not have a chance to respond to Pfizer’s arguments. 4 A reply memorandum is
discretionary and unnecessary for the Court to rule on a motion. 5 But, due to concerns with
proper service the Court granted BYU’s motion and permitted Plaintiffs to file a reply. 6 BYU
filed its reply on April 20, 2012. 7
In its reply BYU asserts that Pfizer mischaracterizes the facts relating to the DNA
Solutions expert reports. BYU argues that contrary to Pfizer’s allegations, the reports do not
support Pfizer’s position that BYU’s mouse COX-2 clones did not work. In essence BYU
devotes the majority of its reply memorandum to arguments concerning the merits of the
underlying case. These arguments, however, are not helpful to the Court in deciding the instant
motion because in its prior decision the Court did not consider the underlying merits of the case
in reaching its decision. Rather, the Court rejected BYU’s assertion that this case was analogous
to Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc. 8 and declined to apply the
exceptional circumstances test. Instead the Court applied a balancing test and found that
withdrawing a designation of an expert this late in a case, after that expert had filed a report, an
amended report and a supplemental report was prejudicial to Pfizer. 9 BYU makes no additional
arguments in its reply that persuade the Court to alter its prior decision. Moreover, after a de
novo review of the arguments of counsel and the facts of this case, even if this Court were to
adopt an exceptional circumstances approach, the Court would still deny BYU’s motion. To
withdraw an expert at such a late stage in this case after they have filed not one, but in essence
Docket no. 13.
See DUCivR 7-1(b)(4)(B) (“A reply memorandum to such opposing memorandum may be filed at the discretion of
the movant within fourteen (14) days after service of the memorandum opposing the motion.”).
Order dated 4/17/2012, docket no. 16.
Docket no. 17.
2002 WL 1906628 (D. Del. Aug. 14, 2002).
See order dated 3/23/12 p. 8-10.
three reports, 10 creates an exceptional circumstance warranting the opposing party being able to
rely on that expert designation.
Finally, in its reply BYU asks in the alternative that it (1) “be allotted equal time to ask
questions at the depositions; and (2) that BYU be able to designate for trial any testimony
coming out of the depositions.” 11 The Court will permit BYU to designate any testimony for
trial and it will allow BYU to be present at the depositions and ask questions. Given the close
proximity to trial in this case, however, the Court believes it will be difficult to allot equal time
turning what may be a two day deposition into four days. But, the Court will leave it up to the
parties to determine the best method for taking these depositions in a timely and efficient
For the reasons set forth above, Plaintiffs’ Motion to Quash is DENIED.
DATED this 24 April 2012.
Brooke C. Wells
United States Magistrate Judge
As noted by the Court in its prior order, “On February 18, 2011, BYU served an expert report from DNA
Solutions outlining its analysis and findings. This report was amended on June 22, 2011 and a supplemental expert
report with additional data comparing BYU’s and Pfizer’s biological samples was also submitted.” Id. at p. 3.
Reply p. 12.
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