US District Judge David G. Campbell overseeing the C.R. Bard IVC filter multidistrict litigation ruled on Sept. 6 that the company can conduct discovery into the plaintiffs’ alleged efforts to influence the Food and Drug Administration.
But the company cannot inquire into the plaintiffs’ communications with NBC Nightly News or third-party litigation funding. The case is In Re: Bard IVC Filters Products Liability Litigation, MDL Docket No. 2641 in Arizona.
Bard said in its motion that it wants to discover any role plaintiffs or their counsel had with the FDA that may have biased the agency, that may reflect improper motivation for the letters and that signals that the letters lack “trustworthiness” for admissibility.
Bard also said five NBC Nightly News stories about Bard’s IVC filters have become the “focal point” for the plaintiffs and they have interviewed Bard witnesses after their appearance in the stories. Bard said the plaintiffs’ communications with NBC could have biased the stories and are thus relevant to Bard’s defense.
No Work Product Protection
Judge Campbell ordered the plaintiffs to respond to interrogatories about their contact with the FDA. He said the requests are relevant to the defense and “proportional to the needs of the case.”
“Plaintiffs have placed and will continue to place much emphasis on the FDA letters, and information regarding Plaintiffs’ role in securing those letters or otherwise influencing the FDA’s actions is plainly relevant to the defense,” the judge wrote.
The plaintiffs argued that the FDA information would be hearsay, but the judge said “information need not be admissible in evidence to be discoverable under Federal Rule of Civil Procedure 26(b)(1).”
“Plaintiffs claim that their communications with the FDA are protected work product because they reveal mental impressions and strategies of counsel, but courts have widely held that communications with government regulators that might prompt government action that could prove beneficial in private litigation waive any work product protection,” the judge said.
As to discovery into the NBC stories, Judge Campbell denied the motion because the plaintiffs assured the court that the stories will not be used at trial.
There are 810 cases in the MDL.
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