Avandia lawsuit: GSK's claims of privilege rejected

In a decision of importance to the case at hand and all cases involving claims of attorney-client or work product privilege, the Honorable Cynthia M. Rufe of the United States District Court for the Eastern District of Pennsylvania, in a decision of December 7, 2009, has ruled that GlaxoSmithKline (GSK), the manufacturer of the prescription diabetes medication Avandia, must produce dozens of documents that it withheld on claims of privilege.

The lawsuit alleges that GSK failed to warn consumers about the risks of Avandia, including that of heart attacks. The case has been assigned by the Panel on Multidistrict Litigation to Judge Rufe.

Judge Rufe's ruling comes on an appeal by GSK of a ruling by Special Discovery Master Jerome J. Shestack, Esquire.

Judge Rufe's opinion first outlines several overarching principles on the attorney-client privilege under Pennsylvania law and the federal work product doctrine, and then addresses the particular documents in question.

Her opinion notes, for example, that the "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."

Importantly, Judge Rufe rejects one of GSK's principal arguments: its interpretation of the "primary purpose" requirement of the attorney- client privilege. Pennsylvania law provides that in order to come within that privilege, the primary purpose of a document must be to secure or give legal advice. The documents in question included ones sent to a group of persons, only one (or more) of whom was an attorney. GSK argued that in determining whether the "primary purpose" requirement was met for those documents, 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 finds that this interpretation has "no support" in cases applying Pennsylvania law, including the lead case on which GSK relied, Ford Motor Co. v. Kelly, 110 F.3d 954 (3d Cir. 1997), and that this interpretation is "inconsistent with the requirement that privileges must be narrowly construed."