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Judge Says Glaxo Documents in Avandia Lawsuit Not Covered by Attorney-Client Privilege

Dec 11, 2009 | Parker Waichman LLP

GlaxoSmithKline's claims of attorney-client privilege have been rejected in an Avandia lawsuit.  On December 9, a federal judge ordered the drugmaker to produce dozens of Avandia documents it was trying to withhold.

The ruling on the Avandia documents was made by the Honorable Cynthia M. Rufe of the United States District Court for the Eastern District of Pennsylvania. Judge Rufe is overseeing the Avandia multidistrict litigation.

Pennsylvania law provides that in order to come within attorney-client privilege, the primary purpose of a document must be to secure or give legal advice. The documents Glaxo wanted withheld included ones sent to a group of persons, only one (or more) of whom was an attorney. 

The drug maker argued that in determining whether the "primary purpose" requirement applied, the inquiry should be only to the purpose of sending the document to the attorney(s), rather than the primary purpose of the document as a whole. Judge Rufe found that Glaxo's interpretation has "no support" in cases applying Pennsylvania law, including the lead case that that the company relied on in making its argument.

In her opinion, Judge Rufe noted that "attorney-client privilege does not shield documents merely because they were transferred or routed through an attorney," and that "documents prepared by a corporation as part of efforts to ensure compliance with federal regulatory agencies or maintain a positive public image for its products, and not because of possible litigation, are not protected by [the] work-product doctrine."

In November 2007, a black box warning  - the Food & Drug Administration's strongest safety warning - detailing Avandia’s association with myocardial ischemia was added to the drug’s labeling.  Since the May 2007 study highlighting Avandia’s heart risks was released, thousands of people injured by the drug have filed lawsuits against Glaxo, claiming ailed to warn consumers about the risks of Avandia, including that of heart attacks.

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