Pfizer Emergency Motion BYU Lawsuit

Brent O. Hatch (5715) [email protected] HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: (801) 363-6363 Facsimile: (801) 363-6666 William F. Lee (pro hac vice) [email protected] WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, Massachusetts 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000

Richard T. Mulloy (pro hac vice) [email protected] DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, California 92101-4297 Telephone: (619) 699-4787 Facsimile: (619) 764-6787

Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pharmacia Corporation

UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION

BRIGHAM YOUNG UNIVERSITY, a Utah non-profit educational institution; and Dr. DANIEL L. SIMMONS, an individual,

Plaintiffs,

vs.

PFIZER INC., a Delaware corporation, G.D. SEARLE & COMPANY, a Delaware corporation, G.D. SEARLE LLC, a Delaware limited liability company, MONSANTO COMPANY, a Delaware corporation; and PHARMACIA CORPORATION, a Delaware corporation,

Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR CHANGE OF VENUE

Case No. 2:06cv00890

Judge: Honorable Ted Stewart

Magistrate Judge: Honorable Brooke C. Wells

Case 2:06cv00890TSBCW Document 1067 Filed 04/26/12 Page 1 of 12

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As the Court already recognized and informed the lawyers for both parties, this case is a

particularly difficult one for seating an unbiased jury. Regrettably, Plaintiff Brigham Young

University and its lawyers, in an effort to press every advantage, have intentionally acted to thwart

that goal. Yesterday, on April 24, 2012, BYU went “on the offensive” in the media, and BYU

made inflammatory and prejudicial statements, which were widely broadcast in Salt Lake City

media outlets. Thus, pursuant to 28 U.S.C. § 1404, Defendants Pfizer, Inc., G.D. Searle & Co.,

Monsanto Company, and Pharmacia Corporation (collectively “Pfizer”) respectfully move for a

change of venue, because Plaintiffs BYU and Dr. Daniel Simmons have willfully tainted the jury

pool with pretrial public statements about the litigation.

I. BYU HAS WILLFULLY TAINTED THE JURY POOL.

On Tuesday, April 24, 2012 the Court held the final pretrial conference in this matter.

BYU’s Deputy General Counsel, David Thomas, was present in the courtroom. Mr. Thomas has

appeared on behalf of BYU, and his name appears on every pleading recently filed by BYU. Mr.

Thomas is also listed as a witness who may testify on behalf of BYU. Seated right next to Mr.

Thomas’s was Dr. Daniel Simmons, who is listed as a plaintiff on the complaint and is seeking to

be declared a co-inventor of the Pfizer patents covering Celebrex.

During the hearing, the Court expressed its concern about finding an unbiased jury pool,

and about the possibility that jurors might do independent Internet research that would uncover

extrajudicial statements or other information that might influence the deliberations. The Court

solicited counsel’s suggestions about the most effective steps that could be taken to mitigate any

harm.

No one sitting in the courtroom could have understood the Court to be inviting them to

make worse the issues with which the Court was struggling. No one could have been uncertain


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that the Court was concerned that any public statement, once made, would live on in the Internet

waiting to be discovered by an actual or potential juror. Instead, Pfizer’s concern about BYU

using the press to taint the venire had been raised by Pfizer in a sidebar conference at the hearing

on March 9, 2012. As a result of that concern, the Court cautioned both parties.

Stunningly, within twenty-four hours of this Tuesday’s pretrial conference, BYU’s Deputy

General Counsel David Thomas, Dr. Simmons, and BYU took steps to insure that the venire will

be permanently tainted by inflammatory, inaccurate, inadmissible, and inappropriate remarks. Dr.

Simmons and Mr. Thomas both appeared on camera in stories broadcast by three of the four major

local news networks and commented specifically on BYU’s case, on its requested damages, and

on what Dr. Simmons and BYU would do with the money if it won. In an apparent effort to

preempt the in limine motions that Pfizer has filed, BYU and its spokesmen sought to expose the

entire venire to arguments that it rightly feared it would be unable to make in court. Moreover,

BYU’s “offensive” came without any warning to the Court or to the defendants.1 During the

discussion of steps to mitigate the risk of juror bias at the pretrial conference, neither Mr. Thomas

nor any other BYU attorney gave any indication that BYU had video of Dr. Simmons commenting

on the case, which it planned to provide to media outlets, or that Mr. Thomas intended to give

media interviews about the case the following day.

Particularly in view of the Court’s admonition, BYU and its counsel knew better than to

taint the jury pool. Moreover, BYU’s Deputy General Counsel, David Thomas, had an ethical

1 In one instance, a reporter contacted Pfizer immediately prior to a story airing, and asked for a response (which a Pfizer representative provided by telephone in an attempt to correct misrepresentations made by BYU).


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obligation not to make the inflammatory statements he made2—including the libelous response

“Very much so” when asked, “Is this a case of theft?”3 As Rule 3.6(a) of the Utah Rules of

Professional Conduct 3.6(a) makes perfectly clear:

A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

BYU’s effort was a coordinated campaign. As the anchor for one news story put it, “BYU

[has gone] on the offense, and it’s not on the gridiron.”4 Within the space of five hours, three

stations ran stories—some multiple times—all referring to BYU’s desire to have their story told.

So concerted was the effort that, within a twenty-four hour window, the stories were broadcast a

total of at least fifteen times. (See Exhibit A.) The stories were estimated to have been seen in

households in the Salt Lake area a total of 623,237 times. (See id.)

Moreover, because these stories now live on the Internet, the Court—and the venire—can

observe them first hand (at the links below). To demonstrate that BYU sponsored the stories, and

to demonstrate the harm worked by them, summaries of those stories appear below.

2 The April 25, 2012 KUTV evening news broadcast of the interview with Mr. Thomas is available at http://www.kutv.com/news/top-stories/stories/vid_1092.shtml. 3 “In order to constitute slander per se, without a showing of special harm, it is necessary that the defamatory words fall into one of four categories: (1) charge of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office; and (4) charge of the unchastity of a woman.” U.S.A. United Staffing Alliance, LLC v. Workers’ Compensation Fund, 213 P.3d 20, 26 (Ut. Ct. App. 2009), quoting Allred v. Cook, 590 P.2d 318, 320 (Utah 1979) (emphasis added). 4 KUTV 2 (CBS) News, available at http://www.kutv.com/news/top-stories/stories/vid_1171.shtml.


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A. KUTV 2—CBS5

Appearing on camera, Dr. Simmons says, “We want to set the record straight. . . . Pfizer

[used] my materials, my ideas, my plan, my intellectual property.” That video does not reflect a

happenstance comment caught by an independent news entity. Rather, as noted in the top left

corner of the video, it was prepared and provided “Courtesy: BYUtv.” This was a professionally

produced video for purpose of influencing the venire—Simmons even appears in his white lab

coat for effect.

A reporter then adds, “Drug maker Pfizer took what was his [Dr. Simmons’s] to make the

drug Celebrex.” BYU Deputy General Counsel Thomas then appears on camera. In response to

the question, “Bottom line, is this a case of theft?” he responded “Very much so.” He then said

“[that] class of drugs was developed, and Pfizer has profited in it immeasurably.” When asked

“how much?” he responded “$35 billion, from Pfizer’s documents.” (emphasis added).6

This interview was not Mr. Thomas’ first attempt to condition the jury. On March 27,

2012 he told the Salt Lake Tribune that “the ruling on Dr. Simmons’ co-inventorship claim is

particularly gratifying because, if the jury embraces BYU’s evidence, Celebrex can become much

more affordable.” (Cf. Defendants’ Motion in Limine No. 9 To Preclude Plaintiffs from

Referencing That BYU Only Files Lawsuits for Good Reason (Dkt. 1004).)

5 Available at http://www.kutv.com/news/top-stories/stories/vid_1171.shtml. 6 The “Pfizer documents” to which Mr. Thomas presumably was referring include confidential documents concerning Pfizer’s profits from sales of Celebrex. In this respect, Mr. Thomas’s statement may also have resulted in a violation of the Court’s protective order.


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B. KSTU 13—FOX7

Both Dr. Simmons and BYU Deputy General Counsel Thomas appeared in this story as

well. The anchor characterizes the case as potentially “the largest civil lawsuit in the history of the

state of Utah.”

The report then seeks to establish BYU’s veracity as a plaintiff: “For only the second time

in two decades Brigham Young University has filed a lawsuit.” A casual review of only this

Court’s own docket shows that this is false.8 (Cf. Defendants’ Motion in Limine No. 9 To

Preclude Plaintiffs from Referencing That BYU Only Files Lawsuits for Good Reason (Dkt.

1004).)

Dr. Simmons then appears on camera (again, in video provided by “Courtesy: BYUtv”) to

state that “I discovered the COX-2 enzyme doing cancer research.” Then, apparently previewing

his desire to be an expert witness at the trial (cf. Defendants’ Motion To Exclude Expert

Testimony from Plaintiff Dr. Daniel L. Simmons), he opines “Pfizer has always represented that

Celebrex arose solely through their own research. We now know that’s not true.” BYU Deputy

General Counsel Thomas adds that “[Celebrex] is a seminal discovery and without Dan Simmons

it would not have occurred.”

A reporter states that “BYU and Simmons contracted with Monsanto to develop the new

super-drug” and that “the original contract called for BYU and Dr. Simmons to split ‘reasonable

royalties’ which experts put at 15% of Pfizer’s $35 billion in Celebrex sales. It works out just

about $10 billion for BYU and Dr. Simmons.” At the same time, the following graphic appears

onscreen: 7 Available at http://fox13now.com/2012/04/25/byu-in-10b-civil-suit-with-pfizer/. 8 See BYU v. Hitachi High Tech. America, Case No. 2:08-cv-946; BYU v. Maris Del Re Gallery, Inc., 2:92-cv-596; BYU v. Nat’l Accident Ins. Underwriters, Inc., 2:96-cv-0013.


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In those sentences—and with that graphic—the story communicates to the venire that

“experts” have opined that BYU is entitled to a 15% recovery—despite the fact that the only

“expert” who has done so was retained by BYU and is the subject of a pending Daubert motion.

(Cf. Defendants’ Motion to Exclude Testimony of Dr. Richard Gering (Dkt. No. 1013).)

The story ends with an obvious attempt to pander to the jury pool. BYU is quoted as

saying, “If BYU wins, Dr. Simmons, who heads the cancer research center at BYU plans to use

the money to fund further cancer research.” (Cf. Motion in Limine to Preclude Plaintiffs from

Referencing Purported Favorable Consequences of a Jury Finding for the Plaintiffs (Dkt. No.

1018).)

3. KTVX 4—ABC9

The anchor leads the story by saying “BYU is suing Pfizer for $9 Billion” and continues

by saying “The university says that the company stole information from a professor that led to the

development of Celebrex.”

* * * 9 Available at http://tinyurl.com/ch8gymq.


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BYU’s campaign has apparently not concluded. Pfizer was contacted by NBC-KSL

(Channel 5), which indicated that it intended to run a similar story today. As the Court is aware,

KSL is owned by the same entity that controls BYU—The Church of Jesus Christ of Latter-Day

Saints. KSL and the Deseret News previously ran lengthy one-sided stories with pre-packaged

video and other material from BYU immediately after the hearing on March 9, 2012.

Those articles and video have apparently had the desired effect. Online comments to the

Deseret News story show that BYU’s media campaign has caused people to want to be on the jury

(having prejudged the case). One commenter stated:

I wish I could be called for jury duty on this one, . . . I gotta feeling that if BYU has utilized so much money in legal fees, they have done it based on solid evidence.

Comment of “catdude85.”10 Similar comments from other potential jurors appear in other stories:

If BYU is anything, it is honest and patient. Time will not wear away the findings of Mr. Simmons and he will get his day. Who would you side with.....Big Pharma or BYU? HHmmmmm

Comment of “Nephi,” “Federal rulings set stage for BYU-Pfizer trial in Utah,” Salt Lake Tribune,

Mar. 27, 2012, available at http://www.sltrib.com/sltrib/money/53802532-79/byu-simmons-pfizer-

celebrex.html.csp.

The harm that BYU’s campaign has caused cannot be undone—and surely Pfizer should

not have to bear the risk that it can be. The comments of “catdude85”—showing a desire to get on

the jury while harboring bias—confirm that even thorough voir dire is likely not enough to ensure

a fair trial, in light of BYU’s media “offensive.” The Court was rightfully concerned about

securing an unbiased jury, and avoiding the perils of internet research, even before BYU

10 Of course, this viewer’s “feeling” is only reaffirmed by the incorrect news reports that BYU has only filed two lawsuits in the past two decades.


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embarked on its most recent effort to condition the venire. Now that the BYU-sponsored news

stories have aired and are available online—and readily discoverable by anyone who runs a

Google search for “Pfizer and BYU”—at least some jurors (or their family members) are almost

certain to see or remember these stories at some point during the course of the eight-week trial.

Whatever hope there may have been of obtaining jurors who, despite potential ties to

important local institutions such as BYU or the LDS Church, could be impartial, BYU has now

willfully made that task impossible. Every major broadcast television station has now aired (or

will air today) a story sponsored by BYU. This is not the typical case in which news stories

appear because news outlets are reporting an event. Instead, BYU started a press campaign to

benefit its litigation position—as one station correctly put it, BYU is going “on the offensive.”

II. VENUE SHOULD BE TRANSFERRED AS A RESULT OF BYU’S CAMPAIGN TO TAINT THE JURY POOL BY MR. THOMAS'S AND DR. SIMMONS’ STATEMENTS.

Even in a case in which neither party is responsible for the prejudicial pretrial publicity,

the Tenth Circuit has recognized the need to take steps to cure the prejudice. “[W]here there is a

reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should

continue the case until the threat abates, or transfer it to another county not so permeated with

publicity.” House v. Hatch, 527 F.3d 1010, 1023 (10th Cir. 2008) (quoting Sheppard v. Maxwell,

384 U.S. 333, 362-63 (1966)) (emphasis added); see also, e.g., Latiolais v. Whitley, 93 F.3d 205,

207 (5th Cir. 1996) (“There is a constitutional right to a fair trial in a civil case.”). Certainly there

is a “reasonable likelihood” of an unfair trial when hundreds of thousands of households have

been exposed to BYU’s media “offensive.”

But here the situation is even worse than the typical case of prejudicial pretrial publicity—

because it is entirely of BYU’s own making and design, affirmatively using not only BYU’s


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principle witness, but also its counsel of record in this case. See, e.g., United States v. Mitchell,

752 F. Supp. 2d 1216, 1222 (D. Utah 2010) (quoting United States v. Sabhnani, 599 F.3d 215,

232-33 (2d Cir. 2010) for principle that “district court may consider [a party’s] role in generating

adverse publicity in deciding a motion for change of venue”).

BYU’s campaign has seriously and foreseeably prejudiced Pfizer. In upholding the

constitutionality of a Nevada disciplinary provision nearly identical to the rule applicable to BYU

Deputy General Counsel Thomas, the United States Supreme Court has identified the important

interests that underpin such a rule:

The “substantial likelihood” [of influencing the jury] test embodied in Rule 177 [of the Nevada ethical rules] is constitutional under this analysis, for it is designed to protect the integrity and fairness of a State’s judicial system, and it imposes only narrow and necessary limitations on lawyers’ speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing such costs on the judicial system and on the litigants.

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991) (emphasis added and citations

omitted). BYU’s campaign trampled on the very interests behind Utah Rule of Professional

Conduct 3.6, the interests that lead the Court to caution counsel at the sidebar on March 9, 2012,

and the interests that caused the court to discuss the jury issues at the April 24, 2012 hearing. By

their media campaign, BYU, Dr. Simmons, Mr. Thomas were shamelessly pandering to the jury

pool. The result will be to precondition even more potential jurors like the one who commented “I


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wish I could be called for jury duty on this one.” Pfizer should not be asked to bear the risk—

deliberately created by BYU—that “extensive voir dire may not be able to filter out all of the

effects of pretrial publicity.” Gentile, 501 U.S. at 1075. And time alone can not abate the risk—

any local juror who has access to the Internet and an affinity for BYU (or who simply remembers

that there was some press about this case) will have the ability to call up the stories that BYU

sponsored. No motion in limine or Daubert motion can wipe from the Internet BYU’s suggestion

that a multi-billion dollar verdict will be used to conduct cancer research.

Respectfully, a change of venue is required. Only in a jurisdiction where there was no

such pretrial media “offensive,” and in which BYU and other local institutions are less prominent

in the life of potential jurors, can the prejudice BYU has worked be ameliorated. The Southern

District of New York, where Pfizer is located, is a district where this case could originally have

been brought, is a district where the parties can obtain a fair trial, and is a district where the taint

of BYU’s campaign has the highest probability of being avoided. Alternatively, the District of

Missouri—where the Monsanto facility that developed COX-2 was located—is likewise a

convenient jurisdiction in which the parties can get a fair trial. This Court should order transfer to

one of those two districts.

CONCLUSION

At the outset of the pretrial conference, the Court asked whether Pfizer was ready to go to

trial. Pfizer responded “yes.” The Court then asked whether Pfizer was ready to go to trial on

May 29, 2012. Pfizer responded “yes.” Both answers were true and heartfelt when given. As a

result of BYU’s conduct, neither answer is true today.

On the very next day after Pfizer gave those answers, BYU launched a campaign—starring

its principle witness and one of its lawyers—to irreparably taint the jury pool. It did so


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effectively, utilizing the impermissible themes that are the subject of pending motions in limine—

such as its claims that BYU never sues unless it is absolutely necessary (without revealing the

contingency fee), that “experts” agree that BYU is entitled to 15% of Pfizer’s profits, and that the

proceeds of a verdict will fund cancer research. It did so knowingly, notwithstanding the Court’s

concern about difficulty in securing an impartial jury. It is unfair for BYU now to be permitted to

argue, “no harm, no foul” or to extol the virtues of voir dire or other remedies to cure the taint it

willfully implanted into the jury pool. Respectfully, there is no reason to reward BYU’s behavior,

or suggest that others emulate it.

Accordingly, Pfizer respectfully requests that the Court vacate the trial date and transfer

this matter to the United States District Court for the District of Missouri (the Research Agreement

applied Missouri law) or the United States District Court for the Southern District of New York

(where Pfizer is located). To the extent that the Court needs additional information concerning

BYU’s campaign and those who participated in it, the Court should reopen discovery to permit

discovery into the events of the last few days.

Respectfully submitted this 26th day of April, 2012.

/s/ Brent O. Hatch _ Brent O. Hatch HATCH, JAMES & DODGE, P.C. Richard T. Mulloy DLA PIPER LLP William F. Lee WILMER CUTLER PICKERING HALE AND DORR LLP Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pharmacia Corporation


Documents

Pfizer Emergency Motion BYU Lawsuit