Pennsylvania Record

Monday, December 9, 2019

Discovery dispute in litigation against Novartis, Par will not move to New York, federal judge rules

Federal Court

By Karen Kidd | Dec 3, 2019

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U.S. District Court Judge Joseph F. Leeson

PHILADELPHIA – A discovery dispute in litigation against Swiss and New Jersey-based pharmaceutical companies over release of a leukemia drug will not be moved from Pennsylvania to New York, a federal judge recently ruled.

In his 23-page opinion issued Nov. 5, U.S. District Court Judge Joseph F. Leeson, on the bench in the U.S. District Court for the Eastern District of Pennsylvania, denied a motion by plaintiffs in the case to transfer a discovery dispute to New York or to compel production of subpoenaed documents.

Leeson ordered parties in the case to abide by a previous stipulated protective order issued in the New York district.

"However, material deemed 'highly confidential' shall only be seen by the parties' outside counsel," Leeson said in his opinion.

Purchasing, retailing and end-paying plaintiffs in the case allege Novartis AG engaged in a monopolistic scheme to delay the introduction of generic versions of its leukemia drug Gleevec into the U.S. market, according to background portions of Leeson's opinion.

In the underlying case that originated in Southern New York District Court, plaintiffs allege that Novartis and fellow defendant Par Pharmaceuticals, based in Woodcliff Lake, New Jersey, conspired to manage timing of Gleevec's launch and a generic drug that would compete with a Novartis drug.

Novartis International AG, based in Basel, Switzerland, is one of the world's largest pharmaceutical companies.

"Plaintiffs are in the midst of a discovery dispute with non-party Alembic Pharmaceutical Inc. over the production of subpoenaed documents," Leeson said in his opinion

Alembic raised no objection to the subpoena, leaving Leeson to rule on the plaintiff motion to transfer the discovery dispute to the Southern District of New York or to compel Alembic to produce the subpoenaed documents.

Leesome ordered dispute to remain in Pennsylvania and that Alembic to bear the costs of producing the documents. Leeson issued portion of the order after finding that Alembic failed to produce evidence "of their reasonable costs of production" and denying Alembic’s request to cover the costs of their production.

"Consequently, Alembic cannot be compensated for time expended and expenses incurred for complying with the subpoena," Leeson continued in his opinion. "This court will not grant Alembic carte blanche to cover the costs of their production. It was incumbent upon Alembic to provide this court evidence of their costs, even a reasonable estimate would have sufficed. Alembic failed to do so."

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