Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No.2) [2008] FCA 1468

Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (No.2) [2008] FCA 1468

The applicant's amended pleading alleged sufficiently, though broadly, that the VIOXX representations made to practitioners resulted in group members including the applicant being prescribed VIOXX. In light of documents already discovered about the first respondent's marketing methods, further discovery was appropriate, but only within limits: documents and Genesys entries were to be produced for the identified Peterson sales representatives and within a temporal limit, while broader discovery of all sales representatives' call notes across Australia was not justified.

Jurisdiction
Australia
Judgment Date
10 September 2008
Procedural Posture
Notice of Motion Concerning Discovery Obligations / Interlocutory Application
Outcome
Applicant's motion was allowed in part; the first respondent's discovery obligations and timetable were varied in limited terms, the broader request for nationwide sales call notes was refused, no order was made concerning drug information requests at that stage, and costs were reserved.
Legal Topics
['discovery' 'variation of Discovery Orders' 'further Amended Statement of Claim' 'vioxx Representations' "sales Representatives' Call Notes"]
['civil Procedure'] ['discovery' 'variation of Discovery Orders' 'further Amended Statement of Claim' 'vioxx Representations' "sales Representatives' Call Notes"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion Concerning Discovery Obligations / Interlocutory Application

Legal Issues

  1. 1 ["Whether the first respondent's discovery obligations should be varied to require discovery of documents concerning the marketing, promotion and sale of VIOXX and interactions with Australian medical practitioners by identified Peterson sales representatives." "Whether the applicant's pleaded case, including paragraph 19A of the Further Amended Statement of Claim, supported discovery of documents relating to indirect communication of the VIOXX representations to prescribing practitioners." 'Whether discovery should extend to notes of sales calls made by all sales representatives promoting VIOXX to Australian medical practitioners and their staff across Australia.' 'Whether any order was required concerning drug information requests relating to VIOXX.']

Ratio Decidendi

The applicant's amended pleading alleged sufficiently, though broadly, that the VIOXX representations made to practitioners resulted in group members including the applicant being prescribed VIOXX. In light of documents already discovered about the first respondent's marketing methods, further discovery was appropriate, but only within limits: documents and Genesys entries were to be produced for the identified Peterson sales representatives and within a temporal limit, while broader discovery of all sales representatives' call notes across Australia was not justified.

Court Disposition

Applicant's motion was allowed in part; the first respondent's discovery obligations and timetable were varied in limited terms, the broader request for nationwide sales call notes was refused, no order was made concerning drug information requests at that stage, and costs were reserved.

Orders

  • ["Paragraphs 1 and 2 of the court's orders dated 26 November 2007 be varied in accordance with paragraphs 3 and 4 of these orders." "Paragraph 12 of the court's orders dated 4 July 2008 be varied in accordance with paragraph 5 of these orders." 'The following category be added to categories of documents listed in...