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In re Celexa and Lexapro Marketing and Sales Practices Litigation

United States District Court, D. Massachusetts

January 2, 2018

In re CELEXA AND LEXAPRO MARKETING AND SALES PRACTICES LITIGATION
v.
FOREST LABORATORIES, INC., FOREST LABORATORIES, LLC and FOREST PHARMACEUTICALS, INC., Defendants. DELANA S. KIOSSOVSKI and RENEE RAMIREZ, Plaintiffs,

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge.

         This case arises out of the marketing and sales of the anti-depressant drugs Celexa and Lexapro by defendants Forest Laboratories, Inc., Forest Laboratories, LLC and Forest Pharmaceuticals, Inc. (collectively, “defendants” or “Forest”). Plaintiffs Delana Kiossovski and Renee Ramirez (collectively, “plaintiffs”) allege that defendants 1) engaged in a fraudulent marketing scheme designed to induce consumers to purchase Celexa and Lexapro for pediatric use in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d), 2) were unjustly enriched and 3) violated the Washington Consumer Protection Act, RCW § 19.86.010 et seq.

         Pending before the Court is plaintiffs' objection to a ruling of Magistrate Judge Marianne B. Bowler on plaintiffs' motion to compel production of documents withheld for privilege. For the reasons that follow, this Court will overrule the objection and affirm the magistrate judge's rulings.

         I. Background and procedural history

         The early background and procedural history of this case are set forth in this Court's prior Memoranda & Orders addressing defendants' motions to dismiss (Docket Nos. 32 and 62) and plaintiffs' motion to certify a class (Docket No. 196).

         In December, 2016, plaintiffs moved to compel the production of 183 documents withheld by defendants on the basis of the attorney-client privilege and the work product doctrine. Magistrate Judge Bowler heard argument on that motion in January, 2017 and entered an order denying plaintiffs' motion in May 2017. Plaintiffs filed their timely objection to that order on May 24, 2017.

         Plaintiffs challenge Forest's decision to withhold 183 documents dated between April and November, 2004, related to a 2004 Congressional probe investigating the use of anti-depressants for children. Plaintiffs claim that the attorney- client privilege was extinguished as to the 183 subject documents under the crime-fraud exception. In 2004, Congress initiated a probe of the FDA and several drug manufacturers to investigate the use of anti-depressants for children. The Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce convened a hearing to review the disclosure of clinical studies related to such drugs. At that hearing, Dr. Lawrence Olanoff, who was the Executive Vice President of Forest, testified about two studies done by Forest with respect to the efficacy of Celexa in the pediatric population, MD-18 and Study 94404.

         In the course of that testimony, Dr. Olanoff stated that Forest has

[c]onsistently acted appropriately and in compliance with all legal and regulatory requirements when informing physicians about our products [and that] because the FDA has not approved pediatric labeling for our products, Forest has always been scrupulous about not promoting the pediatric use of our antidepressant drugs, Celexa and Lexapro.

         In a later deposition, Dr. Olanoff acknowledged that the statement he gave regarding off-label promotion “was later demonstrated to be incorrect”. He submitted that the statement was provided to him by counsel. Plaintiffs assert that the privilege was therefore extinguished as to the communications between Forest and its counsel in preparation for the congressional testimony and for Dr. Olanoff's testimony itself.

         II. Review of the May, 2017 Ruling

         A. Legal Standard

         If a party timely objects to the non-dispositive rulings of a magistrate judge on pretrial matters, the district judge must modify or set aside any part of the disputed order that is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). As another session of this Court has found,

[a] respect for this standard is important, given the pivotal role that magistrate judges play in overseeing the conduct of the sort of complex ...

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