Tuesday, August 11, 2009

Did Pfizer Intimidate a Key Plaintiffs Witness on the Eve of the Neurontin Trial?

By Susan Beck

Did Pfizer, the world's largest pharmaceutical company, cross the line on the eve of last month's crucial test trial involving its controversial anti-seizure medication Neurontin?

Two weeks after the trial abruptly ended with the plaintiffs agreeing to dismiss their case with prejudice, questions linger about why Pfizer sent a former CIA agent and private investigator to the home of a whisteblowing scientist the day before he was scheduled to testify. The scientist, David Franklin, told the Am Law Litigation Daily that he and his family felt harassed and intimidated by the Pfizer investigator's appearance at their home and are still shaken by the event. The judge overseeing the Neurontin multidistrict litigation, Boston federal district court judge Patti Saris, issued a restraining order instructing Pfizer and the investigator to stay away from Franklin and his family.

Pfizer, which was represented in the case by Skadden, Arps, Slate, Meagher & Flom and Boies, Schiller & Flexner, has apologized to the court for the incident, but maintains in a newly filed brief that Franklin exaggerated the facts "to attract negative media attention to Pfizer." Skadden and Boies Schiller lawyers say in the filing that Pfizer's investigator followed standard protocols and was not hostile or threatening to the scientist or his family. They have asked Saris to lift the restraining order.

The controversy began Monday, July 27, when Franklin's wife, Ann Laquerre, received a call from someone who identified himself as a detective working on a federal case. When Laquerre pressed the caller about his identity, he revealed that he was a private investigator who worked for a group of law firms representing Pfizer. At that point, according to Franklin, Laquerre said she didn't want to talk to him and hung up.

Franklin said that he and his wife had good reason to be wary of Pfizer; Franklin, a research scientist, has long been a thorn in the company's side. In 1996 he filed a whistleblower claim against Warner Lambert (which Pfizer acquired in 2000) for its aggressive off-label marketing of Neurontin. When Pfizer pled guilty to violating federal drug laws and paid a $430 million fine in 2004, Franklin received a $24.6 million payment for his efforts.

Franklin had been subpoenaed by plaintiffs lawyer Mark Lanier to testify in a personal injury suit brought by the family of Susan Bulger, a young mother who committed suicide while taking Neurontin. (As we've previously reported, the Bulger case was the first case to go to trial of the roughly 1,200 product liability suits alleging that Neurontin increases suicide risk.) Pfizer's lead lawyers -- Mark Cheffo of Skadden and former Altria associate general counsel William Ohlmeyer of Boies Schiller -- had repeatedly asked Saris to bar Franklin from testifying on behalf of Bulger's family, but the judge refused.

On July 27, a half-hour after that first call to Franklin's wife, the private detective called her again. According to Franklin's subsequent testimony -- which is disputed in many regards by Pfizer and its investigator -- the detective told Laquerre that he had an "urgent message" to deliver to Franklin and that he wouldn't accept no for an answer. Franklin testified that the investigator said, "You will see me. This isn't going to end." Laquerre, who was "agitated and terrified," according to Franklin, told the man not to bother them any more.

Later that day, Franklin noticed a truck without a front license plate blocking his driveway, and a man speaking on a cell phone, pacing back and forth. Franklin, whose 8-year-old daughter was home at the time, told the court that this "scared the hell out of us." When the man approached their front door, Laquerre called the police, and told the man she had done so. This made the man extremely angry, Franklin testified, and he left, after dropping his business card by their front door. (A report from the Hopkinton, Mass., police confirms that Laquerre made this call.)

The business card revealed the unwanted visitor to be James Danforth, who runs a private investigation firm called Central Investigative Services in Wenham, Mass. According to Danforth's resume, he has also worked as a special agent for the Central Intelligence Agency, as a federal agent for Naval Intelligence, and as a detective for the Fort Lauderdale Police Department.

When Franklin took the stand at the Bulger trial the day after Danforth's visit, he told the judge and jurors that he was nervous about testifying because of the incident. The next day, after the case was dismissed, Franklin returned to court to tell Saris how much the intrusion by the man he called Pfizer's "thug" had upset him and his family. According to a transcript of the proceeding, the scientist noted that he is scheduled to testify in other Neurontin cases, and that he's worried about what might happen in the future. "It feels like a threat," he told the judge. "It feels like a threat."

Skadden's Cheffo assured Franklin and the court that this wouldn't happen again, although he did not offer an explanation of Danforth's actions at the time. "There are two sides to the story, but I think we're kind of past that right now," the Pfizer lawyer said in court July 29. "And, as I said, I can't say it any more, I do apologize if there was anything inappropriate. That was never an intent. Certainly we didn't advise that." Judge Saris ordered Pfizer to stay away from Franklin and his family.

In an interview last week with the Litigation Daily, Danforth denied trying to intimidate Franklin and his family and called those allegations "ridiculous" and "absolutely false." He asserted that he didn't know Laquerre was Franklin's wife, and instead thought she was an attorney associated with the scientist. "I was asked to locate [Franklin] and see if he would talk to these lawyers [for Pfizer]. The object was not to intimidate somebody into not testifying," Danforth told us.

Pfizer has filed this six-page declaration from Danforth in support of its request that Saris lift the restraining order. In it, Danforth reiterates that he was polite and professional in his dealings with the Franklin family. "I never threatened or harassed Ms. Laquerre, Mr. Franklin, or anyone in their family," he says in the declaration. "It is my belief that the facts relating to my attempt to contact Mr. Franklin have been greatly distorted to create a false impression. I was not hired to intimidate anyone."

Skadden partner Mark Cheffo told us that Danforth was trying to determine Franklin's address and availability to testify because the plaintiffs team had only identified him as a live witness a week before trial, and that there was "nothing nefarious" about the investigator's visit to Franklin's home. "Parties in litigation often use investigators to serve papers, interview nonparty witnesses, or to determine availability," he wrote in an e-mail response to the Litigation Daily's questions about Danforth. "Because [the] plaintiff dismissed the case on day one of the trial, the court only heard Mr. Franklin's version of what happened."

But plaintiffs lawyer Lanier told us Cheffo's explanation was disingenuous, especially since Pfizer has been dealing with Franklin for more than a decade and he's been deposed many times by Pfizer lawyers. If the company's lawyers wanted to contact the scientist, Lanier said, they could have picked up the phone and called his longtime lawyer Thomas Greene. "Everybody has known for a decade that David Franklin is represented by Tom Greene," Lanier said, adding that he's never seen anything like Danforth's sudden attempt to contact a key plaintiffs witness the day before he testified. "This is a classic tobacco ploy," Lanier said.

"It could only have been done for intimidation," said Franklin's lawyer, Green. "I've been practicing law 30 years and I would not be trying to contact the opposing party's lead witness, who is represented by counsel, on the eve of trial." (Pfizer's newly filed brief says that Danforth was unaware Franklin was represented by counsel because the qui tam case ended years ago.)

In an interview with the Litigation Daily almost two weeks after the incident, Franklin still sounded upset by Pfizer's actions. "Boy, it was really effective in scaring the hell out of us -- involving my wife and child in this," he said. "Whatever they intended, if it was to intimidate, it was very effective."

This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.

No comments: