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Nonparty discovery in drug cases: when you hand a defense witness a document that shows how the company worked with third parties to downplay a drug's risks, it's a moment the jury won't forget. Thorough nonparty discovery can get you there.

Article Excerpt
Relevant information in a pharmaceutical case is not limited to what the defendant has. It also includes documents in the possession or control of--and the testimony of people who work for--marketers and trade groups that promote pharmaceutical products and the industry as a whole.

Drug makers hire vendors, including marketing and advertising agencies, to favorably alter doctors' and consumers' views about the benefits and risks of pharmaceutical products. These agencies use traditional marketing methods, such as paid-for advertising and public relations campaigns, but they also employ other marketing vehicles--like arranging for ghostwritten medical articles--to shape the "conventional wisdom" about the utility and safety of drug products. (1)

Professional trade organizations with financial ties to drug companies also have tremendous influence over the medical community's perception of a drug's value. These organizations can influence a drug's popularity by issuing favorable advisories about a product to organization members, who then prescribe the drug to their patients, and by holding continuing medical education (CME) seminars at their conventions that paint the product in a favorable light.

Organization members may join drug company speakers' bureaus and talk about a drug with professionals and professional organizations at meetings and luncheons organized by the drug company. Members may also accompany physicians in hospital grand rounds--the formal hospital meetings in which physicians discuss medical cases--and deliver favorable "messages" about the product.

As a result of these efforts, a drug's warnings may get watered down, failing to accurately reflect the dangers associated with its use. This can affect a drug company's ability to rely on the learned-intermediary defense to a failure-to-warn claim.

There are three situations in which it may be helpful to obtain information from nonparties.

The defendant does not produce documents. Sometimes, defendants are unable to produce relevant documents because those items have been destroyed according to a document-retention schedule. Other times, documents are not produced either because the defendant cannot locate them or does not want to produce them or admit that they exist.

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Deposing a defendant's employees about the whereabouts or substance of the documents not produced is not always successful. By the time litigation has started, key employees may be difficult to locate because they have left the company, or they may simply be unavailable to testify. When they do testify, they may say they do not recall the substance or whereabouts of unproduced documents.

When this happens, you might be able to locate the documents you need or information about the facts of an event through nonparty discovery.

The defendant denies that it had contact with a nonparty. If a defendant disputes or denies claims that it worked with a nonparty to promote its products, discovery of information directly from the nonparty might shed light on whether it did--and what occurred pursuant to that relationship. This discovery also should...

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