United States District Court, D. Massachusetts
In re CELEXA AND LEXAPRO MARKETING AND SALES PRACTICES LITIGATION
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.
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.
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.
Background and procedural history
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
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.
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.
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.
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
Review of the May, 2017 Ruling
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 ...