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Pfizer Emergency Motion BYU Lawsuit

Pfizer Emergency Motion BYU Lawsuit

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Pfizer Inc.'s emergency motion asking that its trial with Brigham Young University be moved from Utah.
Pfizer Inc.'s emergency motion asking that its trial with Brigham Young University be moved from Utah.

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Published by: The Salt Lake Tribune on Apr 27, 2012
Copyright:Attribution Non-commercial

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04/27/2012

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Brent O. Hatch (5715) bhatch@hjdlaw.comHATCH, JAMES & DODGE, P.C.10 West Broadway, Suite 400Salt Lake City, Utah 84101Telephone: (801) 363-6363Facsimile: (801) 363-6666William F. Lee (
 pro hac vice)
 william.lee@wilmerhale.comWILMER CUTLER PICKERINGHALE AND DORR LLP60 State StreetBoston, Massachusetts 02109Telephone: (617) 526-6000Facsimile: (617) 526-5000Richard T. Mulloy (
 pro hac vice
)richard.mulloy@dlapiper.comDLA PIPER LLP (US)401 B Street, Suite 1700San Diego, California 92101-4297Telephone: (619) 699-4787
 
Facsimile: (619) 764-6787
 Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pharmacia Corporation
UNITED STATES DISTRICT COURTDISTRICT OF UTAH CENTRAL DIVISIONBRIGHAM YOUNG UNIVERSITY, a Utahnon-profit educational institution; and Dr.DANIEL L. SIMMONS, an individual,Plaintiffs,vs.PFIZER INC., a Delaware corporation, G.D.SEARLE & COMPANY, a Delawarecorporation, G.D. SEARLE LLC, a Delawarelimited liability company, MONSANTOCOMPANY, a Delaware corporation; andPHARMACIA CORPORATION, a Delawarecorporation,Defendants.
DEFENDANTS’ MEMORANDUM INSUPPORT OF EMERGENCYMOTION FOR CHANGE OF VENUE
Case No. 2:06cv00890Judge: Honorable Ted StewartMagistrate Judge: Honorable Brooke C. Wells
Case 2:06-cv-00890-TS-BCW Document 1067 Filed 04/26/12 Page 1 of 12
 
 
- -1As 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 YoungUniversity and its lawyers, in an effort to press every advantage, have intentionally acted to thwartthat goal. Yesterday, on April 24, 2012, BYU went “on the offensive” in the media, and BYUmade inflammatory and prejudicial statements, which were widely broadcast in Salt Lake Citymedia 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 achange 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 hasappeared 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 Courtsolicited counsel’s suggestions about the most effective steps that could be taken to mitigate anyharm. 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
Case 2:06-cv-00890-TS-BCW Document 1067 Filed 04/26/12 Page 2 of 12
 
 
- -2that the Court was concerned that any public statement, once made, would live on in the Internetwaiting to be discovered by an actual or potential juror. Instead, Pfizer’s concern about BYUusing the press to taint the venire had been raised by Pfizer in a sidebar conference at the hearingon 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 DeputyGeneral 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, andon 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 theentire 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 thediscussion of steps to mitigate the risk of juror bias at the pretrial conference, neither Mr. Thomasnor any other BYU attorney gave any indication that BYU had video of Dr. Simmons commentingon the case, which it planned to provide to media outlets, or that Mr. Thomas intended to givemedia interviews about the case the following day.Particularly in view of the Court’s admonition, BYU and its counsel knew better than totaint 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 askedfor a response (which a Pfizer representative provided by telephone in an attempt to correctmisrepresentations made by BYU).
Case 2:06-cv-00890-TS-BCW Document 1067 Filed 04/26/12 Page 3 of 12

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