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To Call or Not to Call

By Philip M. Busman and Michael L. Junk

This article briefly examines the controversial topic of ex parte contacts, and describes how such contacts were successfully employed to obtain summary judgment in two separate cases pending within the Aredia'/Zometa' mass tort litigation. It is not a 50-state survey on the viability of ex parte contacts. Rather, the article provides practical examples of how they can be used, with the hope that by doing so, it might draw attention to the vital role that ex parte contacts play in the defense of pharmaceutical product liability litigation.

At the same time, we hope to counteract the argument that ex parte contacts serve no legitimate purpose given the availability of “formal” discovery mechanisms. As these examples from the Aredia'/Zometa' litigation and countless other examples show, ex parte contacts play a key role in combating ever-changing liability theories and ensuring that non-meritorious cases meet a just, if not speedy, end.

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