Expert Witness Cannot Be Disqualified Merely Because He Once Worked for the Opposing Party
On July 20, 2017, Magistrate Judge James C. Francis IV recommended allowing the testimony of an expert retained by the plaintiffs in an antitrust suit. The antitrust suit alleges that drug maker Forest Laboratories suppressed generic drug competition to Namenda IR, Forest’s blockbuster Alzheimer’s drug.
Forest, on June 15, 2017, asked the court to disqualify Dr. Lon Schneider, a former consultant to Forest, who helped Forest during the development and approval of Namenda. Dr. Schneider also assisted Forest during the patent litigation between Forest and the would-be generic competitors. He agreed to work with the antitrust plaintiffs in a later antitrust suit, which argues that Forest used the patent litigation to delay generic versions of Namenda and then announced a discontinuation of Namenda IR to permanently suppress that competition by causing doctors and patients to switch to Namenda XR (which is not substitutable with less-expensive generic Namenda IR).
Forest argued that Dr. Schneider was “associated with every aspect of matters at issue in this litigation.” Forest also argued that “[d]isqualification of Dr. Schneider is warranted on [that] basis alone.” The motion stated that disclosure of Forest’s confidential information to plaintiffs would be “inevitable” if Dr. Schneider served as an expert for the direct purchaser plaintiffs.
But Forest could not show what that confidential information might be. Forest admitted that, because of multiple acquisitions and personnel turnover, much of its evidence in support of its motion was lost.
In its recommendation, the court stated that Forest could only establish a confidential relationship with Dr. Schneider through 2011. Forest’s failure to establish a confidential relationship, “on its own, dooms its motion,” the court said.
The court additionally noted that Deborah Jaskot, a former executive at Teva Pharmaceuticals USA, should similarly be allowed to serve as an expert for the plaintiffs. On June 30, 2017, Teva, who is not a named party in the Namenda litigation, claimed that Jaskot should be disqualified as an expert because she received confidential information from Teva and it would be impossible for her to “‘compartmentalize’ the information she obtained during her 23-year history at Teva USA and testify solely based on non-Teva information that the plaintiffs provide to her.”
The direct purchaser plaintiffs argued that Teva’s confidential information is not relevant to the issues in the case, because “even if Ms. Jaskot had acquired confidential information during her time at Teva concerning its generic Namenda IR product, she would have no occasion to use it in her expert opinion,” the plaintiffs’ opposition brief states. The court agreed with plaintiffs, stating that “Teva has not established a risk that its confidential information will be used against it if Ms. Jaskot serves as an expert for the plaintiffs.”
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About Kristyn Fields
Kristyn Fields is an associate in Faruqi & Faruqi, LLP’s New York office. She practices in the area of antitrust litigation with a focus on competition in the pharmaceutical industry.