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In re Celexa and Lexapro Marketing and Sales Practices Litigation

United States District Court, D. Massachusetts

January 24, 2018

In re CELEXA AND LEXAPRO MARKETING AND SALES PRACTICES LITIGATION
v.
FOREST LABORATORIES, INC. and FOREST PHARMACEUTICALS, INC., Defendants. PAINTERS AND ALLIED TRADES DISTRICT COUNCIL 82 HEALTH CARE FUND, Plaintiff, DELANA S. KIOSSOVSKI and RENEE RAMIREZ, Plaintiffs,
v.
FOREST LABORATORIES, INC. and FOREST PHARMACEUTICALS, INC., Defendants.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

         These cases arise 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, “the Kiossovski plaintiffs”) and plaintiff Painters and Allied Trades District Council 82 Health Care Fund (“Painters”) (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, 3) violated the Washington Consumer Protection Act (Kiossovski) and 4) violated the Minnesota Consumer Fraud Act and Minnesota Unfair Trade Practices Act (Painters).

         Pending before the Court are plaintiffs' objections to two rulings of Magistrate Judge Marianne B. Bowler on 1) plaintiffs' motion to compel supplemental production of documents pursuant to Fed.R.Civ.P. 26(e)(1) (Painters and Kiossovski) (Docket No. 750) and 2) defendant's motion to quash the third party subpoena served on H. Lundbeck A/S (“Lundbeck”) (Painters) (Docket No. 843). For the reasons that follow, this Court will overrule the objections and affirm the magistrate judge's rulings.[1]

         I. Background and Procedural History

         The early background and procedural history of these cases 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 Painters and this Court's prior Memoranda & Orders addressing defendants' motion to dismiss (Docket No. 28) and plaintiffs' motion to certify a class (Docket No. 65) in Kiossovski.

         A. Plaintiffs' motion to compel supplemental production of documents pursuant to Fed.R.Civ.P. 26(e)(1)

         Plaintiffs first object to Magistrate Judge Bowler's denial of their motion to compel a supplemental production of documents pursuant to Fed.R.Civ.P. 26(e)(1). This discovery dispute arises from Forest's production of two documents produced after the close of discovery in advance of plaintiffs Fed.R.Civ.P. 30(b)(6) deposition. The documents relate to the packaging issue in a clinical study (“MD-18”) conducted by Forest to determine the safety and efficacy of Celexa for the treatment of depression in pediatric patients.

         The MD-18 study was sponsored by Forest and conducted in the United States between 2000 and 2001, enrolling subjects aged 7-17. At the beginning of the study, Forest became aware that some study subjects in the “active” treatment group received bottles packaged with the pink citalopram pills sold commercially, rather than the white citalopram pills used for the purposes of clinical studies. In March, 2000, Forest notified the study sites of the packaging error and instructed them to return the bottles for the subjects who had not yet been randomized. Later that month, Forest notified the FDA of the clinical supply packaging error and stated that the error had the “potential to cause patient bias”, referencing the “eight potentially unblended patients”. In 2002, the FDA determined that MD-18 was a positive study, supporting the conclusion that Celexa was effective for pediatric use.

         Fact discovery in Painters closed in July, 2016 and in Kiossovski in January, 2017. The parties agreed, however, with the leave of this Court, to conduct a deposition pursuant to Fed.R.Civ.P. 30(b)(6) to allow plaintiffs to inquire about the packaging error. Prior to that deposition, counsel for Forest produced two documents detailing how the dispensing error occurred in MD-18. After the production of those documents, plaintiffs sent a discovery letter seeking to reopen discovery and requesting that Forest supplement its production to produce all documents related to the packaging error pursuant to its obligation to supplement discovery under Fed.R.Civ.P. 26(e)(1).

         In March, 2017, after Forest refused to reopen discovery and make supplemental productions with respect to the packaging error, plaintiffs filed a motion to compel supplemental production of documents which Forest opposed later that month.

         Magistrate Judge Bowler heard argument on the motion in April, 2017 and took the matter under advisement. On May 10, 2017, Magistrate Judge Bowler entered a memorandum and order denying plaintiffs' motion to compel. Plaintiffs timely filed their objections to that order shortly thereafter.

         B. Defendants' motion to quash third party subpoena of Lundbeck

         Plaintiff Painters also objects to Magistrate Judge Bowler's order quashing its third party subpoena served on Lundbeck. That discovery dispute concerns a second clinical trial conducted to determine the efficacy of Celexa for pediatric use, Study 94404. Study 94404 was conducted by Lundbeck, the Danish pharmaceutical company which developed the drug molecules and licensed them to Forest.

         Lundbeck has produced documents in this litigation in response to a subpoena served by plaintiffs in November, 2016. In May, 2017, nearly one year after discovery closed in the Painters action, Painters served a subpoena ad testificandum on Lundbeck. Forest moved to quash that subpoena in June, 2017, suggesting that it violated this Court's scheduling order without good cause and that any information sought through the subpoena would be duplicative. On December 13, 2017, Magistrate Judge Bowler ...


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