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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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In re: NEURONTIN MARKETING,
SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION
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THIS DOCUMENT RELATES TO:
ALL MARKETING AND SALES PRACTICES ACTIONS
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MDL Docket No. 1629
Master File No. 04-10981
Judge Patti B. Saris
Magistrate Judge Leo T.
Sorokin
DEFENDANTS’ OPPOSITION TO THE COORDINATED PLAINTIFFS’
MOTION TO COMPEL DEFENDANTS TO PRODUCE ALL BUSINESS AND
OPERATING PLANS RELATING TO THIRD PARTY PAYORS AND TO PRODUCE
AN ADEQUATELY PREPARED RULE 30(b)(6) WITNESS
While packaged as a motion that purportedly seeks to cure alleged discovery deficiencies,
Plaintiffs’ motion actually seeks to re-open discovery for new and additional 30(b)(6)
depositions of the Defendants and to re-litigate issues previously decided by this Court. Plaintiffs
previously moved the Court to compel the Defendants to produce documents and 30(b)(6)
witnesses regarding third-party-payer communication issues. (Dkt. # 827). And during the
September 20, 2007 hearing regarding this motion, Plaintiffs specifically sought documents and
30(b)(6) discovery regarding the Defendants’ communications with third-party payers (TPPs),
the TPPs’ pharmaceutical benefit managers and the physicians that treated the TPPs’ insureds.1
Summing up what really lied at the heart of Plaintiffs’ discovery request, Plaintiffs’ Counsel
argued: “So we wanted something very simple and straightforward, if you had communications
1 Sept. 20, 2007 Hr’g Tr. at 64-66 (attached as Ex. 1 to the April 9, 2008 Declaration of Nicholas
P. Mizell) All subsequent citations to exhibits refer to exhibits of the Mizell Declaration.
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with third party payers about Neurontin give us the communications. … Give us the
communications if you have them and give us someone who can talk generally about them.”2
Granting in part and denying in part Plaintiffs’ Motion, the Court rejected Plaintiffs’
overly broad and unduly burdensome requests and limited the scope of 30(b)(6) discovery to:
“The marketing or promotion of Neurontin directly to the named Third Party Payors,” and
“Pfizer’s organizational structure used for communications with Third Party Payors including
but not limited to the identification of individuals responsible for such communications, the types
and categories of such communications, and to identify any databases that may exist containing
the contents of such communications.”3 In addition, the Defendants were directed to “produce to
Plaintiffs from the National Accounts department, documents relating to communications with
named Third Party Payors regarding Neurontin.”4 In compliance with this Order, the Defendants
produced responsive documents to Plaintiffs on November 17, 2007, and while Plaintiffs chose
not to ask him a single question about these documents, the Defendants also prepared and
produced Pfizer Vice President Jeff Henderson for two full days of deposition regarding the
specific areas of inquiry set forth in Discovery Order 14.
Despite the fact that the Defendants fully discharged their discovery obligations under
Discovery Order 14 and Rule 30(b)(6), and ignoring the Court’s previous ruling that 30(b)(6)
discovery regarding any communications with physicians that treated TPP insureds would be
unduly burdensome, Plaintiffs in the instant motion nevertheless seek to burden the Defendants
with new and additional 30(b)(6) discovery related to any communications with physicians that
treated the named TPP plaintiffs’ insureds. The Court should reject this misguided attempt to re-
2 Id. at 64.
3 Discovery Order 14 (Ex. 2) at pp. 3-4.
4 Id. at 4.
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open discovery and re-litigate these previously decided discovery issues and deny Plaintiffs’
Motion to Compel.
BACKGROUND
Plaintiffs first noticed a 30(b)(6) deposition of the Defendants regarding third-party-payer
communication issues on June 11, 2007. Though the parties were continuing to confer and
correspond regarding an agreed-upon scope for this deposition, Plaintiffs insisted that the
deposition go forward in mid-July. The Defendants, therefore, were forced to move the court for
a protective order, and the Court directed the parties to continue to meet and confer.5
The parties continued to confer and correspond regarding the scope of this deposition, but
unwilling to agree to Defendants’ proposals, Plaintiffs filed a Motion to Compel Discovery re:
Communication Between Defendants and Third Party Payors (Dkt. # 827). The parties argued
the motion before the Court during the September 20, 2007 Motion Hearing, and, on September
27, 2007, the Court granted in part and denied in part Plaintiffs’ motion to compel in Discovery
Order 14.6
On December 4, 2007, and consistent with Discovery Order 14, Defendants identified
Jeff Henderson as their 30(b)(6) designee and notified Plaintiffs of the subject matters for which
he was designated to testify. Mr. Henderson is a 17-year employee and current Vice President of
the business unit that serves as a liaison between Pfizer and TPPs. In this position, Mr.
Henderson’s responsibilities include communications with TPPs (otherwise known as managed
market customers), as well as the development of Pfizer’s TPP strategies. In previous positions
with Pfizer, Mr. Henderson was Vice President of Managed Markets West from 2005 to 2007;
5 Mizell Decl. at ¶ 3.
6 Id. at ¶¶ 5-6.
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Senior Director for National Accounts, Health Plans from 2002 to 2005; and a Regional Account
Manager from 1996 to 2000. All of these positions involved communications with TPPs.
Plaintiffs deposed Mr. Henderson for two full days on December 5 and 6, 2007. Based on
his first-hand knowledge, years of relevant experience and personal investigation and document
review, Mr. Henderson provided detailed testimony about the many changes in the relevant
organizational structure and personnel over a more than seven-year period, the identity of
specific individuals and their respective and often changing areas of responsibility, the types of
communications they had with TPPs, and the databases that contained related information.7
Following the Henderson Deposition, the parties have engaged in a meet and confer
process in an attempt to resolve both related and unrelated discovery issues. Included among
these issues was Plaintiffs’ request that Pfizer produce any operating or business plans that
pertained to the named third-party-payer plaintiffs. Though Mr. Henderson had testified that the
plans would not contain any Neurontin-specific third-party-payer marketing strategies because
Pfizer had decided – following its merger with Warner-Lambert – not to promote Neurontin to
third-party payers, in a good-faith effort to resolve a discovery issue without motion practice the
Defendants agreed to search for and produce any business or operating plans created during the
relevant period and containing any references to Neurontin. On February 13, 2008, Defendants
produced a CD to Plaintiffs containing numerous operating and business plans from within the
operative discovery period in this case that related to Aetna and Kaiser and included references
to Neurontin.8
On March 5, 2008, the parties met and conferred and Plaintiffs’ counsel requested an
additional four hours to continue Mr. Henderson’s 30(b)(6) deposition without any limitations as
7 Id. at ¶ 9.
8 Id. at ¶ 12.
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to the scope of the continued examination. And, notwithstanding the provisions of Discovery
Order 14 expressly limiting the scope of this discovery to the “marketing or promotion of
Neurontin directly to the named Third Party Payers,” plaintiffs sought 30(b)(6) testimony about
any Neurontin-related communications with physicians that treated the named TPP plaintiffs’
insureds. In particular, plaintiffs seek new and additional 30(b)(6) discovery regarding:
1. Any information that defendants have regarding the marketing or promotion of
Neurontin or gabapentin to physicians affiliated with, or who prescribed
mediations to insureds of, named Third-Party payors during the class period;
2. All documents created or possessed by Defendants concerning the marketing or
promotion of Neurontin or gabapentin to physicians affiliated with, or who
prescribed medications to the insureds of, the Coordinated Plaintiffs or any other
named Third-Party Payor; and
3. Any information that Defendants have regarding the creation and contents of
business or operating plans pertaining to the Plaintiffs named in the Coordinated
Complaint and the Third-Party Payors named as Plaintiffs in the Class Complaint,
including physicians affiliated with any such plaintiff or who prescribed
Neurontin or gabapentin to any insured of any such physician.
Because these topics are far afield from the Defendants’ obligations to prepare and produce a
designee regarding the marketing or promotion of Neurontin directly to the named TPP plaintiffs
under Discovery Order 14, the Defendants declined Plaintiffs’ request for new and additional
30(b)(6) discovery. Consequently, Plaintiffs filed the instant motion to compel. The Court,
however, should deny Plaintiffs’ motion and thereby reject Plaintiffs’ attempts to overturn
Discovery Order 14 and re-open discovery.
ARGUMENT
I. THE SCOPE OF DISCOVERY ORDER 14
As they must, Plaintiffs acknowledge and concede that Discovery Order 14 limited their
30(b)(6) discovery concerning TPP communication issues to: “The marketing or promotion of
Neurontin directly to the named Third Party Payors.” See Nussbaum Decl. ¶ 6. And the Court
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expressly defined “named Third Party Payors” to mean “the Plaintiffs named in the Coordinated
Complaint and the Third Party Payors named as Plaintiffs in the Class Complaint.”9 Plaintiffs
nevertheless urge the Court to abandon this plain-meaning and common-sense construction and
suggest that the Court intended to include physicians “affiliated” with the named third-party-
payor plaintiffs when it struck Plaintiffs’ proposed Topic 3 as duplicative of the 30(b)(6) inquiry
permitted by the Court. But Plaintiffs ignore the Court’s reasoning that the “relevant” testimony
sought in Plaintiffs’ Topic 3 – i.e., the marketing and promotion of Neurontin directly to the
named Third Party Payors – was duplicative, leading to the logical conclusion that the Court
applied the same limits to Topic 3 as it did to the other Topics in Plaintiffs’ deposition notice.
Moreover, Plaintiffs’ newfound theory regarding the meaning of the term “named Third-Party
Payor” is belied by their December 3, 2007 amended Notice of 30(b)(6) deposition, in which
they significantly narrowed the definition of “Third Party Payors” to mean “the Plaintiffs named
in the Coordinated Complaint and the Plaintiffs named in the Class Complaint.” See Mizell Decl.
¶ 7.
In fact, it has long been and should remain an uncontested issue between the parties that
communications between the defendants and TPPs regarding TPP-related issues, such as
formulary placement and contracting for rebates, are separate and distinct from any
communications with the physicians who treated the TPP’s insureds. Contrary to the assertion in
the instant motion, Plaintiffs have acknowledged that Permanente Medical Group is not a named
TPP plaintiff. In both depositions and written discovery – when they believe it is to their
advantage – Plaintiffs have distinguished the TPP health plan (Kaiser) from the physician group
9 Discovery Order 14 (Ex. 2) at 3 n.2.
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(Permanente) with which it contracts for services.10 For example, in a letter dated June 4, 2007,
Plaintiffs advised that they could not provide Permanente Medical Group physicians for
deposition because the physicians were not employed by Kaiser and thus were not parties to the
lawsuit:
Contrary to statements made in your letter, these three individuals are not
employed by Kaiser . . . . Therefore, these three individuals are not parties to this
litigation and we do not believe that the information sought in these depositions
will lead to the discovery of admissible evidence.11
And Kaiser Foundation Health Plan’s 30(b)(6) designees have not referred to any
communications between the defendants and Permanente Medical Group physicians when asked
to identify any Neurontin-related communications between the plaintiff health plan and the
defendants.12
Kaiser’s counsel has stood before the Court and stated: “Except the problem is that the
physicians are not actually employees of Kaiser. Kaiser contracts with physician groups.” See
Sept. 27, 2006 Hr’g Tr. (Ex. 9) at 54:17-21. Thus, it contradicts not only their previously-stated
positions, but also the real-world facts, for Plaintiffs to now aver that Permanente Medical Group
physicians are named parties in the litigation such that communications with them constitutes
communications with named plaintiff Kaiser.
II. DEFENDANTS PRODUCED AN ADEQUATELY PREPARED 30(B)(6) WITNESS
TO TESTIFY TO TOPICS AS DESIGNATED IN DISCOVERY ORDER 14
A company need only make a reasonable effort to prepare a Rule 30(b)(6) designee and
“absolute perfection in preparation” is not required. Wilson v. Lakner, 228 F.R.D. 524, 528 (D.
10 See, e.g., Carver Dep. (Ex. 7) at 434:11-435:3 (MS. NUSSBAUM: “. . . the relationship
between the entities is simply a contractual relationship and nothing more. We’ve taken that
position in front of Justice [sic] Saris, we’ve taken that position in front of Judge Sorokin. That
information is publicly available, if you go online, you can research the corporate structures
yourself and that’s the situation.”).
11 See Ex. 8.
12 See Carver Dep. (Ex. 7) at 292:12 -294:17.
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Md. 2005). See also United States v. Mass. Indus. Fin. Agency, 162 F.R.D. 410, 412 (D. Mass.
1995) (denying motion to compel after the court found that the witness had been adequately
prepared and any deficiencies were not “tantamount to a complete failure of the agency to
appear” and the agency did not “act[] willfully or in bad faith to obstruct discovery”).
Pfizer has met its obligations under Rule 30(b)(6) in all of the areas identified in
Discovery Order 14. The Defendants produced documents as required by Discovery Order 14 to
Plaintiffs on November 17, 2007, and Defendants prepared and produced Mr. Henderson for two
full days of deposition regarding “The marketing or promotion of Neurontin directly to the
named Third Party Payors,” and “Pfizer’s organizational structure used for communications with
Third Party Payors including but not limited to the identification of individuals responsible for
such communications, the types and categories of such communications, and to identify any
databases that may exist containing the contents of such communications.” See Discovery Order
14 (Ex. 2) at pp. 3-4. Mr. Henderson had years of supervisory experience in this area and first-
hand knowledge and expertise regarding TPP communication issues. He reviewed deposition
transcripts and devoted 10-13 hours meeting with counsel, interviewing employees and
reviewing documents in preparation for his deposition. Henderson Dep. (Ex. 6) at 134:4-14. This
amount of preparation, coupled with the fact that Mr. Henderson provided detailed deposition
testimony demonstrates that he was adequately prepared to testify to all areas of inquiry for
which he was designated.
Plaintiffs attempt to use two email threads to call into question the adequacy of
Henderson’s preparation to testify as a 30(b)(6) designee. Neither document, however,
contradicts his testimony that Pfizer did not promote Neurontin to third-party-payer Kaiser.
Plaintiffs first reference an email discussion that includes an email written by Alan Partain, a
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Pfizer sales representative, discussing Pfizer potentially contracting with Kaiser for Neurontin.
The document on its face reflects only a proposal to contract with Kaiser for Neurontin, and as
Mr. Henderson explained at his deposition, the decision had already been made not to promote
Neurontin to third-party payers and this policy did not change in light of this document.
Plaintiffs also refer to a document containing an email written by Pfizer employee Curtis
Reese concerning a display that would be presented to physicians that treated Kaiser’s insureds –
a document produced to Plaintiffs well before the Mr. Henderson’s deposition but about which
they did not ask him any questions. On its face, this document relates to communications with
physicians, and not TPP-related communications such as formulary placement or rebate
contracting with Kaiser Foundation Health Plan.
Further, despite previous written discovery requests asking TPP Plaintiff Kaiser to
produce documents containing Neurontin-related communications with the defendants, neither
the originating email of the thread contained in this document, nor any document like it was ever
produced by Kaiser. This naturally leads to the conclusion that Kaiser has taken the position that
this document does not relate to marketing or promotional communications between itself and
the defendants. And notwithstanding Plaintiffs’ assertions to the contrary, this document does not
focus on unapproved uses of Neurontin. Instead, it relates to Kaiser’s then-existing policy of
encouraging the off-label use of tricyclic antidepressants as a first or second line agent for post-
herpetic neuralgia, despite the FDA’s approval of Neurontin for this indication.13
A. No Further Testimony is Needed Regarding Operating and Business Plans Because
They are Consistent with Mr. Henderson’s Testimony that Pfizer did not Promote
Neurontin to Third-Party Payers.
Contrary to Plaintiffs’ assertions, Pfizer’s operating and business plans related to Aetna
and Kaiser do not relate to the implementation of marketing strategies for TPPs concerning
13 See Pfizer_SDoft_0024028-0024031 (Ex. 4).
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Neurontin. As Mr. Henderson testified, Neurontin was not promoted to TPPs and therefore, there
were no TPP marketing strategies for Neurontin.
Plaintiffs specifically reference a 2004 Operating Plan for Kaiser, but this document does
not contain “several references to physicians and to Neurontin” as plaintiffs state. Rather, the
plan contains a single reference to Neurontin and contains nothing related to communications
with the named third-party-payer plaintiffs Kaiser Foundation Health Plan or Kaiser Foundation
Health regarding Neurontin. Further, the use of the phrase “continue to support field detailing
activities” in reference to Neurontin is boilerplate language used when managed market
personnel are not promoting a particular drug to third-party payers. As Mr. Henderson explained
during his deposition, this simply means that managed markets personnel will answer inquiries
from the field sales force about formulary status and insurance coverage issues. Henderson Dep.
(Ex. 6) at 297:9-299:1. Inquiries like this arise in situations such as where a doctor in Memphis
may ask a sales representative whether Federal Express employees have access to certain
pharmaceutical products in their health plans. Henderson Dep. (Ex. 6) at 298:3-299:1. In such a
situation, managed markets personnel would “support field detailing activities” by providing this
information to the sales representative. Other references to Neurontin in the plan simply state
that the drug is on Kaiser’s formulary. None of the other quotes from the plan referenced in
Plaintiffs’ motion have anything to do with Neurontin. To the contrary, Neurontin is never listed
in the plan as a key or “contracted product.”
Plaintiffs’ argument that Mr. Henderson was not an adequately prepared designee
because his preparation did not include a review of HCXchange for communications with the
named TPP plaintiffs is likewise unfounded. As Mr. Henderson explained to Plaintiffs’ counsel
during his deposition, HCXchange is continually updated and does not contain any information
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about products that have gone generic. Henderson Dep. (Ex. 6) at 286:23-288:13. Furthermore,
Plaintiffs have since had the opportunity to depose Laura Kibbe, Defendants’ 30(b)(6) designee
regarding document retention and production issues, about issues related to the creation and
maintenance of business and operating plans for TPPs and issues concerning how and when
materials were posted on electronic resources like HCXchange and MMWeb. Notably, Ms.
Kibbe clarified that HCXchange did not contain any TPP business plans until late 2005 or
January 2006 – beyond the relevant time period for discovery in this case. See April 7, 2008
Deposition Tr. of Laura Kibbe (Ex. 10) at 128-129.
While the operating and business plans are not responsive to Plaintiffs’ discovery
requests, Defendants nevertheless produced numerous operating and business plans to Plaintiffs
in a good-faith attempt to resolve this discovery issue without motion practice. Given that the
Neurontin-related references within them are consistent with Mr. Henderson’s testimony that
Neurontin was not a promoted product within the managed markets area, there is no need for
additional testimony about them.
B. Mr. Henderson Adequately Testified to Warner-Lambert’s Third-Party
Payer Communications by Expressly Adopting The Testimony of Former
Warner-Lambert Employees
Plaintiffs contend that Mr. Henderson was not adequately prepared to respond to
questions regarding communications between Warner-Lambert/Parke-Davis and TPPs. Mr.
Henderson was never employed by Warner-Lambert. Despite a lack of first-hand knowledge, a
company must undertake a reasonable effort to inform its 30(b)(6) designees “to the extent the
matters are reasonably available, whether from documents, past employees, or other sources.”
Berwind Prop. Group, Inc. v. Envtl. Mgmt. Group, Inc., 233 F.R.D. 62, 65 (1st Cir. 2005).
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As the defendants’ 30(b)(6) designee, Mr. Henderson reviewed and expressly adopted the
deposition testimony of former Warner-Lambert employees George Cavic, Christopher
Desimone, and John Richter to the extent their testimony related to the topics for which he was
designated.14 Mr. Cavic, Mr. Desimone, and Mr. Richter worked in the Healthcare Management
Group at Parke-Davis, and had direct responsibility for and testified concerning the
communications with TPPs, the types of documents created or maintained by Warner-Lambert
regarding TPP communications, and the organizational structure involved with these
communications.
For example, George Cavic testified that as Vice President of the Healthcare
Management Group, his group had communications with third-party payers about uses for which
Neurontin was approved by the FDA, including communications with United Healthcare and
Blue Cross Blue Shield. Mr. Cavic repeatedly explained that his sales team had communications
with third-party payers. See Ex. 11 at 42:9-43:9; 45:25-48:25. And Plaintiffs should not be heard
to complain about Mr. Henderson’s inability to identify by name any other Warner-Lambert
personnel that may have communicated with TPPs because Plaintiffs did not ask Cavic, Richter,
or Desimone for this information.
In sum, the testimony of Cavic, Richter, and Desimone was based on their first-hand
knowledge and related to events that occurred more than seven years ago with respect to a
predecessor entity. Given these circumstances, Mr. Henderson’s review and adoption of their
testimony adequately discharged Defendants’ 30(b)(6) obligation. Indeed, Defendants went
14 Each of these individuals sat for two-day depositions. Notably, Annamarie Daley
conducted the examination of Mr. Henderson and also conducted the examination for
each of these former Warner-Lambert employees.
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beyond their obligation and provided Plaintiffs a page-and-line designation of the testimony
expressly adopted by Mr. Henderson during his deposition.15
CONCLUSION
Defendants respectfully submit that for all of the foregoing reasons the Court should
reject Plaintiffs’ attempt to re-litigate these previously decided discovery issues, preclude
Plaintiffs from unduly burdening the Defendants with new and additional 30(b)(6) discovery
obligations, and otherwise deny Plaintiffs’ Motion to Compel.
Dated: April 9, 2008
Respectfully submitted,
DAVIS POLK & WARDWELL
By: /s/ James P. Rouhandeh
James P. Rouhandeh
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
SHOOK, HARDY & BACON L.L.P.
By: /s/ Scott W. Sayler
Scott W. Sayler
2555 Grand Boulevard
Kansas City, Missouri 64108
(816) 474-6550
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15 See Ex. 5.
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HARE & CHAFFIN
By: /s/ David B. Chaffin
David B. Chaffin
160 Federal Street
Boston, Massachusetts 02110
(617) 330-5000
Attorneys for Defendants Pfizer Inc. and
Warner-Lambert Company LLC
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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system has been served
pursuant to Case Management Order #3 on April 9, 2008.
/s/ David B. Chaffin
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