This post is from the non-Reed Smith side of the blog only.

In pharmaceutical litigation, discovery is almost always massive.  Plaintiffs depose dozens of company witnesses, often over several days and sometimes in multiple jurisdictions. Defendants have to produce millions of pages of documents of which usually only a handful are ever used at depositions and trial.  Both sides retain several experts in various areas of specialty and each expert produces a voluminous report supported by thousands of pages of back-up materials.  The time and costs associated are staggering.  And when all of that is said and done and you actually get to the discovery related to one particular plaintiff, there is one particular deposition that can make all the difference – the prescriber.

There are any number of cases, too many reported on by this blog alone to count, where the prescriber’s testimony was the linchpin for the defense.  But in the overwhelming machine that is mass tort discovery, it might be easy to overlook that one particular deposition.  Like Jimmy Buffett’s One Particular Harbor– this one particular deposition can be a haven.  “Sheltered from the wind . . . where all are safe within.”  OK, prescriber testimony is that idyllic, but allow us a little poetic leeway.

The reason for our focus on the prescriber today is a recent win in the Avandia litigation,  Schatz v. GSK, 2015 U.S. Dist. LEXIS 37411 (E.D. Pa. Mar. 24, 2015), where the defendant embraced that one particular deposition.  Faced with several claims that all essentially boiled down to failure to warn claims, GSK moved for summary judgment on the ground that plaintiff could not establish causation.  The crux of defendant’s argument was that plaintiff could point to no evidence that had the prescribing doctor received a different warning, he would have altered his prescribing habits.  Id. at *9.  And since that’s the standard under Pennsylvania law, plaintiff’s claims should be summarily dismissed.

What did the prescriber say at his deposition -- that if plaintiff presented to him today, knowing everything he now knows about the risk of bone fractures, he would still have prescribed Avandia.  Id.  Like the hum of “drummers and night sounds” on a tropical island – music to our ears.

Plaintiff tried a few different methods of combating this testimony but none prevailed.  First, plaintiff argued that the prescriber also testified that if the warning had been in a black box it would have “caught his eye,” but that testimony wasn’t enough to create a genuine issue of material fact as to whether the enhanced warning would have deterred his decision to prescribe in this case.  Id. at *10-11.  Second, plaintiff pointed to testimony that the doctor routinely relies on Dear Health Care Provider letters.  But the court found that immaterial here because the doctor continued to prescribe Avandia to plaintiff for months after defendant’s letter was distributed.  Id. at *11-12. Next, plaintiff claimed that after she suffered multiple fractures, her prescriber researched the issue and decided to stop her Avandia prescription.  But, this was not enough to overcome the prescriber’s direct testimony that he wouldn’t have changed his original decision to prescribe the drug.  Id. at *12.  Finally, plaintiff tried to use expert testimony but that testimony was geared toward studies done after plaintiff had stopped taking Avandia and was about “older” women, which plaintiff was not. Id. at *13.

So, all in all, that one single line of direct and unrefuted testimony from plaintiff’s prescriber carried the day.  While we’ve seen it before, it doesn’t make it any less fantastic, especially when put in context of what we can only assume based on our experience to be the vast discovery that has occurred in the litigation overall.  That made us stop to think about we should be thinking about as we approach prescriber depositions.  The list is long and varied. It depends on jurisdiction (heeding presumption state or not), on the facts (drug withdrawn or still on the market), on the doctor (assess confidence, experience).  So this is more like a wish list of testimony you might want to try to get – where appropriate -- and that you may want to keep in mind as you prepare for that one particular deposition:

  • Establish that the drug was an effective treatment (preferably for a number of medical conditions)
  • Establish that the benefits outweighed the risks for most patients
  • Establish that the prescriber weighed the risks/benefits forthis patient AND concluded that the benefits outweighed the risks for this patient
  • Establish either
    • that the prescriber was aware of the very risk of which plaintiff suffered at the time he/she prescribed the drug OR
    • that the prescriber continued to prescribe the drug to plaintiff after learning about the risk OR
    • that the prescriber, now knowing about the risk, would still have prescribed it to plaintiff
  • Establish that in general the prescriber continues to prescribe the drug 
  •  Establish that other medications were not efficacious for this particular plaintiff

Hit the highpoints on this list and you might just be basking in some of that Caribbean sunshine Jimmy’s always singing about.