IN RE: ABILIFY (ARIPIPRAZOLE) PRODUCTS LIABILITY LITIGATION
3:16-md-02734
N.D. Fla.May 15, 2017Background
- MDL proceeding (In re: Abilify) where Plaintiffs rely on Dr. Mahyar Etminan’s 2017 peer-reviewed epidemiologic study linking aripiprazole to gambling disorder; Defendants sought to depose Dr. Etminan about methodology and potential bias.
- Deposition of Dr. Etminan (non-testifying consulting expert since Feb 2017) was authorized and scheduled for May 16, 2017 in Vancouver.
- Defendants initially sought documents of communications between Dr. Etminan and Plaintiffs’ U.S. counsel; they later narrowed scope and agreed to limit questioning about pre-retention communications (before Dec 8, 2016 publication).
- Plaintiffs asserted protections: (1) Rule 26(b)(4)(D) protection for informally consulted experts and (2) opinion work-product protection under Rule 26(b)(3) for counsel’s communications with the expert.
- Court conducted an in camera review of a handful of emails between Co-Lead Counsel Gary Wilson and Dr. Etminan, found no evidence counsel altered the study, but emails referenced phone calls whose content was not in the record.
- Court permitted questioning about whether counsel’s communications influenced the study or caused methodological changes, but preserved opinion work-product protection for counsel’s mental impressions and litigation strategy absent a showing of waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-retention communications between Plaintiffs' counsel and Dr. Etminan are protected as communications with an informally consulted expert under Rule 26(b)(4)(D) | Etminan was an informally consulted expert before retention; those communications are protected from discovery | Pre-retention communications are discoverable; Etminan was a fact witness pre-retention and defendants may probe them | Court rejected finding that Etminan was established as an informally consulted expert pre-retention given lack of factual showing; did not bar inquiry into relevant pre-retention communications |
| Whether Plaintiffs’ counsel’s communications with Etminan are protected as opinion work product under Rule 26(b)(3) | Communications reflect counsel’s mental impressions, conclusions, litigation strategy and thus are nearly absolutely protected | Plaintiffs waived protection by relying on the study; defendants should be able to test whether counsel influenced the study | Court held communications are opinion work product and protected; defendants may ask if communications influenced the study but may not probe counsel’s mental impressions or strategies absent waiver or extraordinary circumstances |
| Whether defendants may inquire into any methodological changes to the study following communications with counsel | N/A (Plaintiffs sought protection) | Defendants may probe whether counsel’s communications affected timing, methodology, or content of the published study | Court permitted inquiry into whether any communications altered timing, methodology, or other substantive aspects of the study; permitted inquiry into Etminan’s motives for initiating contact |
| Whether assertion of independence/peer-review by plaintiffs waives protection and permits broader discovery of counsel-expert communications | Counsel’s involvement does not automatically waive work-product protection | If counsel had input into study, waiver should follow and defendants may discover communications relevant to bias | Court declined to adopt a presumption of waiver; waiver requires factual showing that counsel actually influenced the study; if discovered during deposition, parties may seek a waiver ruling from the court |
Key Cases Cited
- In re Bextra and Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 249 F.R.D. 8 (D. Mass. 2008) (discusses discoverability of peer-review materials and researcher confidentiality)
- Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 622 F.2d 496 (10th Cir. 1980) (factors for determining status of informally consulted expert)
- USM Corp. v. Am. Aerosols, Inc., 631 F.2d 420 (6th Cir. 1980) (informal expert consultation in anticipation of litigation can be protected)
- In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007 (1st Cir. 1988) (importance of protecting attorney trial preparation materials)
- Cox v. Administrator, U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994) (opinion work product enjoys near absolute immunity)
- In re Murphy, 560 F.2d 326 (8th Cir. 1977) (work-product doctrine and narrow circumstances for discovery)