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Where defendants claimed plaintiff’s discovery requests were burdensome and duplicative, did the plaintiff establish sufficient grounds to compel production in this patent infringement action? Were defendants’ requests for certain documents relevant to the litigation at hand? Carefully reviewing five different motions to compel production of documents, the U.S.
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District Court for the Western District of New York analyzed these and related questions in University of Rochester v. G.D.Searle & Co., Inc., et al. Resolving the motions one by one through his 58-page opinion, U.S. Magistrate Judge William G. Bauer granted certain discovery requests and denied others, while also ordering the parties to meet for a status conference on May 6, 2002, to address the time table for completion of discovery. The Parties, The Pleadings Plaintiff, University of Rochester, filed this patent infringement action in April 2000 pursuant to 35 U.S.C. 101 et seq. against defendants G.D. Searle & Co., Inc., Pfizer, Inc., Monsanto Co., and Pharmacia Corp. Seeking injunctive relief and damages, the action revolves around a pharmaceutical method that the University allegedly owns under Patent No. 6,048,850. Plaintiff alleges that three of the defendants, Pharmacia, Searle and Monsanto, manufacture and sell Celebrex, a non-steroidal compound for human consumption that is approved by the Food and Drug administration and prescribed to treat arthritis pain with limited side effects. Pfizer is involved in co- marketing Celebrex. Searle is a wholly-owned subsidiary of Pharmacia. Monsanto, after a company merger, changed its name to Pharmacia. Defendants deny infringement and have interposed affirmative defenses and counterclaims, seeking a declaratory judgment of non-infringement. The Patent The patent at issue involves a method for inhibiting an enzyme known as cyclooxygenase-2 (COX-2). Suffice it to say that limiting COX-2 activity decreases the amount of inflammation in a human’s reaction to injury or disease. Prior to the discovery of COX-2 inhibitors, certain aspirin-like drugs inhibited COX-1 and COX-2 activity, which meant that while reducing inflammation, there was an undesirable side- effect of inhibiting the production of molecules that were beneficial to the stomach and GI tract. The drug Celebrex selectively inhibits COX-2 activity and is marketed as the number one selling brand of prescription arthritis pain medication, to the tune of over $2.6 billion annually. Defendants’ Motion On Post-Complaint Documents A group of competing inventors employed by Merck Frosst Canada & Co. and Merck & Co., Inc. (Merck) have been involved in an ongoing patent interference proceeding with the University. These proceedings, i.e., Cromlish v. Young, are pending before the U.S. Patent and Trademark Office (PTO). Defendants assert that they need all documents related to the ongoing dispute. The University already produced Young v. Cromlish documents pre-dating the instant district court litigation, and admits that post-complaint documents may be “marginally relevant.” Plaintiff asserts it will release these documents if the defendants release certain other documents. “Discovery under Rule 26 is not and should not be treated as something that is negotiable,” wrote the court. “If the requested information is relevant and sought in good faith, it should be produced regardless of whether or not the opposing party has or has not produced information itself. *** [T]here is no basis to preclude these documents from discovery.” Citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 882 F2d 682, 687 (2d Cir. 1989), for construction of “relevance” under Rule 26(b)(1), the court granted defendants’ motion to compel the University to produce all documents, both pre-and post-complaint, from Cromlish v. Young. Plaintiff’s Motion To Compel COX-2 Litigation Documents Seeking all documents in connection with any litigation, interference or opposition proceeding between defendants and any other entity involving any patent application or patent related to COX-2 inhibitors, plaintiff ran into resistance from the defendants on the grounds of relevance and burdensomeness. Defendants did produce some documents from infringement proceedings in the United Kingdom, but refused to produce all documents related to a total of 13 foreign proceedings. The University maintains that what they have seen so far indicates “key admissions” that undermine the defendants’ claims of invalidity, and shed light on a number of factual issues. Asserting that the plaintiff’s request would impose an undue burden and be duplicative, the defendants resisted production of litigation documents beyond the matters already revealed in the U.K. litigation. Claiming they would need to produce “tens of thousands of pages of documents,” the defendants also asserted that the burden is further aggravated by the need to review the documents for privilege and withholding and scheduling those documents that are privileged. Pfizer specifically claimed that the majority of the documents would be privileged and would require preparation of a log of privileged documents — another unduly burdensome task. Carefully considering both defendants opposition and plaintiff’s claimed relevance, the court noted that “[T]he relevance of the COX- 2 litigation documents outweighs the claimed burden to defendants. *** As to the purported time and expense necessary to prepare privilege logs and schedules, such things are common place in litigation and are in fact required by the Federal Rules of Civil Procedure. See Fed. R. Civ. P 26(b)(5); Burns v. Imagine Films Entertainment, Inc. 1654 FRD 589, 593 (WDNY 1996).” Accordingly, the court granted the University’s motion to compel the production of COX-2 litigation documents, with instructions for the parties to confer and agree on timetables. Pfizer’s Documents Requesting the court to direct Pfizer to produce all documents relating to carprofen, darbufelone or nimesulide compounds, which related to the COX-1 or COX-2 inhibitors, the third motion addressed by the University’s specific requests to Pfizer. Are these additional documents relevant and responsive? Would production be duplicative or unduly burdensome? As Pfizer pushed for relief, the court noted that “It is well-established that the party attempting to resist production bears the responsibility of establishing undue burden. Coker v. Duke & Co., Inc.177 FRD 682, 686 (MDAla 1998). *** The party seeking to avoid discovery on the grounds of undue burden must substantiate its position with detailed affidavits or other evidence establishing that production does, in fact, present an undue burden. Coker, 177 FRD at 686.” Finding that “potential benefits of this discovery outweighs the burden imposed by a search for these documents,” the court ordered Pfizer to search for and produce all “non-duplicative and responsive documents.” As part of this ruling, the court also refused to condone Pfizer’s attempt to unilaterally determine the relevance of certain documents, and its prior redaction of certain material from documents it had produced. ECelebrex drug evra interaction ortho
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