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Fosamax and the Public Hazards Discovery Doctrine

By Timothy M. O'Brien

Part One of a Two-Part Series

An observation can be made about the typical method through which mass pharmaceutical litigation begins. Initially, the plaintiff files a lawsuit and serves the manufacturer with written discovery requests, seeking information pertaining to adverse events, clinical trials, direct-to-consumer marketing, and the like. The manufacturer objects to each and every request and does not provide one document. The manufacturer then delays, and the plaintiff frets and finally a compromise is worked out whereby limited production will be obtained; attached to that production will be a manufacturer-imposed presumption of confidentiality. At the same time, while the manufacturer strives to keep secret the internal documents showing what it knew and when it knew it, it will issue a press release talking about the wonderful medicine, claiming it is being wrongfully sued and saying that it has never had a reason to think the medicine was unsafe.

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