United States District Court, N.D. Florida, Pensacola Division
IN RE ABILIFY ARIPIPRAZOLE PRODUCTS LIABILITY LITIGATION, This Document Relates to All Cases
Jones Magistrate Judge
CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE
dispute between the parties currently exists regarding the
permissible scope of the upcoming deposition of Dr. Mahyar
Etminan, the lead author of Risk of Gambling Disorder and
Impulse Control Disorder with Aripiprazole, Pramipexole, and
Ropinirole: A Pharmacoepidemiologic Study, 37(1) Journal
of Clinical Psychopharmacology, 102-04 (2017) and a
non-testifying consulting expert for Plaintiffs since
February 2017. The deposition is currently scheduled for May
16, 2017 in Vancouver, Canada.
first requested to take Dr. Etminan's deposition during a
discovery conference call on April 26, 2017. Defendants
explained that Dr. Etminan had previously admitted to
methodological flaws in a study he authored regarding the
Mirena IUD. Plaintiffs objected and argued that allowing
Defendants to depose Dr. Etminan would have a chilling effect
on scientific research, citing In re Bextra and Celebrex
Marketing Sales Practices and Product Liability
Litigation, 249 F.R.D. 8 (D. Mass. 2008). The Court
disagreed and found the Bextra case distinguishable
because it focused on the discoverability of peer review
information, whereas here the Defendants did not seek
discovery into the confidential peer review process but
rather into the researcher's methodology supporting a
published scientific study the Plaintiffs intend to rely on
in an effort to establish general causation. Given the
importance of this study as the only epidemiological study on
the relationship between Abilify and compulsive gambling
currently in existence in the scientific literature, the
Court authorized the deposition.
subsequently submitted a proposed order for the deposition,
which included a duces tecum-type request for all
“[d]ocuments reflecting communications [by Dr. Etminan]
with attorneys representing U.S. plaintiffs.” ECF No.
333-1, at 6. This was the first mention that Defendants were
seeking discovery of communications between plaintiffs'
counsel and Dr. Etminan. After Plaintiffs objected,
Defendants voluntarily submitted a revised version of the
proposed order, omitting the document request. The Court
entered the Order on April 28, 2017, ECF No. 337. At the Case
Management Conference on May 5, 2016, and in the
corresponding proposed agenda, the parties debated the
propriety of allowing Defendants to ask questions of Dr.
Etminan about his communications with Plaintiffs'
counsel. The Court ordered briefing from the
parties, which has now been submitted.
propose to question Dr. Etminan about his communications with
Plaintiffs' counsel, in an effort to determine whether
the communications influenced the study. Defendants agree to
limit their inquiry to Dr. Etminan's communications with
Plaintiffs' counsel prior to the study's publication
date of December 8, 2016, which was two months before he was
retained by Plaintiffs. According to Defendants, prior to
Plaintiffs retaining Dr. Etminan as a consulting expert, he
was merely a fact witness, and thus any pre-retention
communications are fully discoverable. Defendants argue
further that even if the communications are entitled to
protection, Plaintiffs have voluntarily waived the
protection. Plaintiffs object to any discovery into
communications between Dr. Etminan and Plaintiffs'
counsel on two primary grounds: first, that Fed.R.Civ.P.
26(b)(4)(D) protects informal consultation with experts
(which is how Plaintiffs characterize Dr. Etminan), and
second that the communications with Dr. Etminan are protected
opinion work product under Fed.R.Civ.P. 26(b)(3).
Camera Email Review
initial matter, in order to dispel any suggestion of
impropriety, Gary Wilson, Co-Lead Counsel for Plaintiffs
requested that the Court review emails between himself and
Dr. Etminan in camera, which the Court agreed to do.
The Court has reviewed the handful emails and finds nothing
in them to suggest that Mr. Wilson either attempted to
influence Dr. Etminan or that Dr. Etminan voluntarily changed
any aspect of the study in response to communications with
Mr. Wilson. With that said, the emails reference telephone
conversations between Mr. Wilson and Dr. Etminan, the content
of which is not contained in the emails.
support of their first argument that the pre-retention
communications are protected due to Dr. Etminan's status
as an informally consulted expert, Plaintiffs point to
Federal Rule of Civil Procedure 26(b)(4)(D), which reads,
“Ordinarily, a party may not, by interrogatories or
deposition discover facts known or opinions held by an expert
who has been retained or specially employed by another party
in anticipation of litigation or to prepare for trial and who
is not expected to be called as a witness at trial”
except on a “showing [of] exceptional circumstances
under which it is impracticable for the party to obtain facts
or opinions on the same subject by other means.”
Fed.R.Civ.P. 26(b)(4)(D). The 1970 Advisory Committee Notes
explain that this section “is concerned only with
experts retained or specially consulted in relation to trial
preparation, ” and, therefore, it “precludes
discovery against experts who were informally consulted in
preparation for trial, but not retained or specifically
employed.” Plaintiffs cite two cases to support their
argument that Dr. Etminan qualifies as an informally
consulted expert within the meaning of Rule 26(b)(4)(D):
Ager v. Jane C. Stormont Hosp. & Training Sch.
for Nurses, 622 F.2d 496 (10th Cir. 1980) and
USM Corp. v. Am. Aerosols, Inc., 631 F.2d 420 (6th
Cir. 1980). The Court is not persuaded by either case.
Ager, a medical malpractice case, the defendants
propounded an interrogatory to the plaintiff asking whether
she had “contacted any person or persons, whether they
are going to testify or not in regard to the care and
treatment rendered?” Id. at 498. Plaintiff
objected to the interrogatory and refused to answer on the
basis that “an expert who advises a party that his
opinion will not aid the party in the trial of the case falls
within the definition of experts informally consulted but not
retained or specially employed.” Id. The
Ager Court acknowledged that under Rule 26, parties
are not entitled to discovery of the “information and
opinions developed in anticipation of litigation” or
“the identity and other collateral information”
related to experts who are informally consulted.
Id., at 501. The court cited the following factors
as important in deciding whether a witness qualifies for this
protection as an informally consulted expert:
(1) the manner in which the consultation was initiated; (2)
the nature, type and extent of information or material
provided to, or determined by, the expert in connection with
his review; (3) the duration and intensity of the
consultative relationship; and (4) the terms of the
consultation, if any (e.g. payment, confidentiality of test
data or opinions, etc.).
Id., at 501. The court found that those factors had
not been considered by the district court and remanded the
case. In USM Corp., Positive Chemical Corporation
was notified that the marketer and distributer of its product
intended to hold the company liable for defects in the
product. Shortly after this notification, Positive Chemical
contacted Joseph Marchbank and requested an evaluation of the
product defect, which Marchbank provided. The court ruled
that the communications were not discoverable because
Marchbank was “informally consulted in anticipation of
litigation.” Id., at 425. Among other things,
the court considered that Marchbank received no compensation
for his services and “express[ed] his unwillingness to
become involved in the . . . dispute.” Id.
Ager and USM Corp. are readily
distinguishable, in that, neither case addresses the
propriety of discovery for an informally consulted expert who
is later formally retained, which is the case with Dr.
Etminan. Additionally, although Plaintiffs rely on
Ager, they have not provided anywhere near the level
of factual detail necessary to address the four factors
identified by the Tenth Circuit as being important to this
issue. The undersigned has limited understanding of the
communications between Dr. Etminan and Plaintiffs'
Co-Lead Counsel Gary Wilson and no information at all of
communications between Dr. Etminan and other Plaintiffs'
counsel. The emails between Dr. Etminan and Mr. Wilson
provide little information, certainly not enough for the
undersigned to decide the “nature, type and extent of
information or material provided to, or determined by, [Dr.
Etminan] in connection with his review, ” or the
duration, intensity, or terms of the ...