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Southern Illinois Laborers' and Employers Health and Welfare Fund v. Pfizer Inc.

November 14, 2007

SOUTHERN ILLINOIS LABORERS' AND EMPLOYERS HEALTH AND WELFARE FUND; NECA-IBEW WELFARE TRUST FUND; MIDWESTERN TEAMSTERS HEALTH AND WELFARE FUND; THE WELFARE FUND OF TEAMSTERS LOCAL UNION 863; PLUMBERS & PIPEFITTERS LOCAL UNION 630 WELFARE TRUST FUND; CLEVELAND BAKERS AND TEAMSTERS HEALTH AND WELFARE FUND; ELECTRICAL WORKERS BENEFIT TRUST FUND; FIRE & POLICE RETIREE HEALTH CARE FUND, SAN ANTONIO, LABORERS' DISTRICT COUNSEL BUILDING AND CONSTRUCTION HEALTH AND WELFARE FUND; LABORERS' DISTRICT COUNSEL HEAVY AND HIGHWAY UTILITY HEALTH AND WELFARE FUND, AND NEW YORK CITY POLICE SERGEANTS BENEVOLENT ASSOCIATION HEALTH & WELFARE FUNDS, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PFIZER INC., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiffs' Motion to Modify Discovery. [Dkt 136.] For the reasons set out below, the motion is denied.

BACKGROUND

In this action, eleven ERISA benefit funds ("Plaintiffs") claim that defendant Pfizer, Inc. ("Pfizer") improperly marketed the medication Lipitor for "off-label" uses. (Am. Compl. ¶ 3.) [Dkt 45.] After the case was referred to this court for discovery, the parties described the claims as follows:

Plaintiffs allege that Pfizer marketed Lipitor for an unapproved use - - cholesterol reduction in moderate risk patients . . . . Plaintiffs claim, that as a result, they paid for unwarranted Lipitor prescriptions. . . . (Jt. Initial Status Report ¶ 1.) [Dkt 88.] Plaintiffs' claims are brought on behalf on themselves and other "third-party/payors . . . that paid any portion of the purchase price for Lipitor" during the Class period, January 1, 2002 to the present. (Second Am. Comp. ¶ 1.)[Dkt 116, 127.]*fn1 The District Judge has set discovery to close on March 31, 2008. [Dkt 49.]

In June 2006, Pfizer served interrogatories on Plaintiffs, asking, inter alia, that they "[i]dentify each prescription of Lipitor for an off-label purpose as defined in the Complaint for which you paid or provided reimbursement." [Dkt 78-3, Interrog. No. 3.] After a hearing on Pfizer's motion to compel Plaintiffs to answer Pfizer's discovery, this court held that the information sought by the interrogatory is discoverable, but allowed Plaintiffs to begin responding by naming a single Plaintiff fund that would provide its information. Specifically, Plaintiffs were ordered to identify by August 20, 2007, each Lipitor prescription written for an allegedly improper off-label purpose that was paid for by the selected Plaintiff fund. [Dkt 98.]

At a continued hearing on discovery motions on August 28, 2007, Pfizer's counsel reported, and Plaintiffs' counsel admitted, that Plaintiffs had not identified any improper prescriptions, but rather had identified and provided information about four (or possibly six) persons. (Pls.' Reply Supp. Mot. Modify Discovery, Ex. A, Tr. Aug. 28, 2007 at 5, 13-14.) [Dkt 143.] In Pfizer's view, the medical profiles of those persons do not show that prescribing Lipitor for them was improper. (Id. at 8.) Plaintiffs' counsel responded that the selected fund had only obtained fifty sets of medical records, and that the actual number of off-label prescriptions would be higher. (Id. at 27.) At the conclusion of the hearing, this court ordered each of the Plaintiffs to answer Interrogatory No. 3. [Dkt 115.]

At that hearing, Plaintiffs' counsel announced that Plaintiffs would be seeking leave to file a Second Amended Complaint, changing the theory of damages. (Pls.' Reply at 18-19.) He admitted that the change was as a result of the difficulty in identifying improper prescriptions. (Id. at 19.) Subsequently, Plaintiffs were given leave to file their Second Amended Complaint. [Dkt 126.] Pfizer's motion to dismiss that Second Amended Complaint is pending before the District Judge. [Dkt 153.]

Plaintiffs' present Motion to Modify Discovery asks that Plaintiffs be relieved of their obligation to comply with the August 28, 2007 Order. Plaintiffs assert that the Second Amended Complaint makes their compliance unnecessary because Plaintiffs' theory of damages has changed. According to Plaintiffs, the Second Amended Complaint: does not allege that individual Plaintiffs were duped into paying for specific off-label prescriptions because of a fraudulent marketing campaign. Rather, the SAC [Second Amended Complaint] alleges that Pfizer's off-label or fraudulent marketing drove demand up and increased the price of Lipitor.

(Pls.' Mem. Supp. Mot. at 5.) [Dkt 131.] Plaintiffs intend to prove damages with "commercially available data, Pfizer's own documents produced in discovery, third-party documents produced by Plaintiffs' subpoenae" and expert statistical modeling. (Id. at 2.) Pfizer objects to the motion and argues that information about allegedly improper prescriptions remains discoverable under the Second Amended Complaint. (Defs.' Opp'n Pls.' Mot.) [Dkt 139.]

DISCUSSION

Fifteen months after filing the initial Complaint in this case, Plaintiffs filed a Second Amended Complaint, arguing that they had changed their damage model. The reason for the change, Plaintiffs admit, is the difficulty of pursuing their original damage theory. The issue on the present motion is whether that change justifies relieving Plaintiffs of this court's previous discovery order, either because the information sought is now beyond the scope of discovery or because producing the information is unduly burdensome to the Plaintiffs.

This court agrees with Pfizer that information about the allegedly improper prescriptions for which Plaintiffs paid remains discoverable under the Second Amended Complaint, and that ...


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