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Mason v. Smithkline Beecham Corp.

March 12, 2007

BONNIE J. MASON AND, WILLIAM J. MASON, INDIVIDUALLY AND AS CO-ADMINISTRATORS OF THE ESTATE OF TRICIA M. MASON, DECEASED, PLAINTIFFS,
v.
SMITHKLINE BEECHAM CORPORATION, D/B/A/ GLAXOSMITHKLINE, A PENNSYLVANIA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

Plaintiffs claims arise from their daughter's suicide while she was taking the drug Paxil. Plaintiffs allege Defendant, the manufacturer of Paxil, knowingly failed to warn about the dangerous side effects of the drug, including the risk of self-harm, instead misrepresenting Paxil as a safe and effective treatment for depression. Plaintiffs' counts sound in negligence, strict liability, breach of express and implied warranties, and fraud. (Complaint, d/e 1).

Before the Court is Plaintiffs' Motion to Compel discovery responses from Defendant GSK and for sanctions (d/e 39), Memorandum in Support (d/e 40), Supplemental Filing by Plaintiffs (d/e 41), Defendant's Response (d/e 45), Plaintiffs' Reply (d/e 47), and Plaintiffs' Corrected Reply (d/e 49).

LEGAL STANDARD

Federal Rule of Civil Procedure 26(b)(1) allows parties to obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party. Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Additionally, for good cause the court may order discovery on matters relevant to the subject matter of the action. "The good-cause standard warranting broader discovery is meant to be flexible." Federal Rule of Civil Procedure 26(b)(1) Advisory Committee Notes, 2000 Amendment. The rule gives the district courts broad discretion in matters relating to discovery. See Brown-Bey v. United States, 720 F.2d 467, 470-471 (7th Cir.1983); Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will only reverse a decision of a district court relating to discovery upon a clear showing of an abuse of discretion).

Fed. R. Civ. P. 33(b) requires interrogatories to be answered fully to the extent not objectionable. Grounds for objection must be "stated with specificity." Fed. R. Civ. P. 33(b)(4). Fed. R. Civ. P. 36(a) requires an answer to a request for admission to "specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter," or, if "objection is made, the reasons therefor shall be stated." Additionally, "a denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder." Id. A matter admitted under Rule 36 is deemed "conclusively established." Fed. R. Civ. P. 36(b).

ANALYSIS

After Plaintiffs filed their motion to compel, Defendant supplemented its discovery responses in part, mooting several of the discovery disputes. (d/e 45). The Court addresses the outstanding requests that still appear in dispute, as identified by Plaintiffs' Reply. (d/e 49).

Interrogatories

1. Interrogatory 13: As a matter of fact state what segments, if any, of the 2 page July 6, 2006 report of Anthony J. Rothschild (a copy of which is attached) YOU disagree with.*fn1 (Note: If any aspect of Dr. Rothschild's 2 page report covers suicide issues which YOU have never considered or dealt with in YOUR history of managing Paxil, please state that fact, and your response will be considered legally sufficient in that respect until expert reports are received).

Response: GSK states that it does not disagree with any facts recited in Dr. Rothschild's report. To the extent this interrogatory asks for more, GSK objects because it is vague, ambiguous, seeks information protected by Illinois law regarding the attorney work-product doctrine, and seeks information that is neither relevant to the subject matter of the pending litigation nor reasonably calculated to lead to the discovery of admissible evidence. GSK further objects because the interrogatory is overly broad and unintelligible in that the attached report of Dr. Anthony J. Rothschild is not limited to statements of fact, yet Plaintiff's interrogatory requests that GSK respond "as a matter of fact."

Supplemental Response*fn2 GSK has fully and sufficiently responded to this interrogatory. GSK has previously retained and currently utilizes Dr. Anthony J. Rothschild as an expert witness in cases alleging that Paxil causes suicide. Should GSK designate Dr. Rothschild as an expert in this matter, Plaintiffs will have ample opportunity to learn his views. For its part, GSK states that it does not disagree with the facts that comprise the segments of Plaintiff's attached report.

Plaintiffs contend that the purpose of interrogatory 13 is to "flush out" GSK's contradictory public representations, i.e., its purported acknowledgment in some venues that the risk of Paxil suicide is serious, contrasted with its retention of an expert who "almost demeans the idea that Paxil can cause suicide." (d/e 49, pp. 1-2; d/e 40, pp. 4-5). Plaintiffs assert that this interrogatory will force Defendant to "come clean" on its purportedly contradictory stands of "continu[ing] to admit[] in 'suicide warnings' only what it must for FDA purposes, while at the same time paying independent experts to undercut those very admissions." (d/e 49, p. 2).

The court does not understand how this interrogatory forces Defendant to "come clean" on contradictory positions. Nor do Plaintiffs sufficiently explain what further information Defendant should have provided in response to this interrogatory. Defendant has already answered that it agrees with the facts set forth in Dr. Rothschild's July 6, 2006 letter. Plaintiffs seem to seek to have Defendant agree or disagree with Dr. Rothschild's expert opinions. Fed. R. Civ. P. 33(c) does state that "[a]n interrogatory otherwise proper is not necessarily objectionable merely because an answer . . . involves an opinion." However, requiring Defendant to agree or disagree to Dr. Rothschild's expert opinions in the letter is tantamount to requiring Defendant to set forth the expert testimony on which it will rely in this case. The court sees nothing improper about Defendant's response that Plaintiffs may delve into the basis of Defendant's expert opinions once experts are designated.*fn3

The Court agrees with Defendant that the part of the request directing Defendant to state if it has not considered the issues in the letter is vague and confusing. It appears that Plaintiffs are asking Defendant to indirectly admit it had no factual basis for its representations about Paxil's safety by admitting that it never considered the issues set forth in the expert report. Even if such a request were clearly stated as a request for admission, the Court could not order Defendant to admit it. Defendant has already stated that it agrees to the facts in Dr. Rothschild's letter, which satisfies its duties under Rule 33.

2. Interrogatory 14: Fully state your degree of agreement--or disagreement--with Dr. Rothchild's [sic] defense of Paxil in paragraph 6 of his statement, specifically his statements that "Notably, these findings rest upon extremely sparse date (11 events on Paxil; 1 on placebo), with most of the individual trial having zero events in either one or both arms of the study. The confidence interval for the finding that approaches statistical significance is extremely broad and the data are very fragile (i.e. a change in one event could greatly affect that statical outcome)." (Note: If YOU have never considered or dealt with this issue in YOUR history of managing Paxil, please state that fact, and your response, though limited, will be considered legally sufficient until expert reports are received).

Response: GSK states that it does not disagree with any facts recited in Dr. Rothschild's report. By way of further response, GSK states that in its briefing document submitted to FDA, with the referenced analysis, GSK stated that, "It is difficult to conclude a causal relationship between paroxetine and suicidality due to the small incidence and absolute number of events, the retrospective nature of this meta-analysis, and potential for confounding by the fact that the events of interest are a symptom of psychiatric illnesses themselves." [citation omitted]. To the extent this interrogatory asks for more, GSK objects because it is vague, ambiguous, overly broad, seeks information protected by Illinois law regarding attorney work-product doctrine, and seeks information that is neither relevant to the subject matter of the pending litigation nor reasonably calculated to lead to the discovery of admissible evidence. Supplemental Response: GSK has fully and sufficiently responded to this interrogatory. Plaintiffs may disagree with the substance of GSK's response, but that does not change the fact that GSK has complied with its discovery obligation. Moreover, GSK is not being inconsistent, as Plaintiffs suggest, regarding the quantity of data used in the analysis released in 2006 versus the 1992 analysis.

Plaintiffs argue that GSK's response is inconsistent with its embrace of even sparser data in earlier studies in Defendant's favor. Plaintiffs asserts that "Rule 33(c)should be respected in plaintiffs' demand that this inconsistency be addressed."

Plaintiffs argument is advocacy in support of their claims--an attempt to assail Defendant's credibility by pointing out inconsistencies. Whether Defendant's positions have been inconsistent and, if so, whether those inconsistencies allow the argued inferences, are decisions for summary judgment or trial. Defendant has met its obligation to answer this interrogatory.

3. Interrogatory 22: For each patient listed in response to TWENTY ONE*fn4 , fully detail why the omission occurred, and the IDENTITY of the GSK official(s) authorizing the omission. Response: GSK states that the suicide related events identified in the Article 31 analysis were the product of the use of a computer algorithm--an algorithm which did not exist at the time of the Study 057 report. GSK will produce, upon the entry of an appropriate protective order, relevant portions of the Article 31 analysis and Study 057, which explain the respective methods of analyses. To the extent this interrogatory asks for more, GSK objects because it is argumentative, vague, ambiguous, overly broad, not properly limited in time, and seeks information that is neither relevant to the subject matter of the pending litigation nor reasonably calculated to lead to the discovery of admissible evidence. GSK further objects to Plaintiffs' assumption that a "GSK official(s) authorized the omission." Supplemental Response: GSK has fully and sufficiently responded to this interrogatory. As GSK has ...


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