By Eric Schweibenz
On December 19, 2011, ALJ Thomas B. Pender issued Order No. 27 (dated December 16, 2011) in Certain Vaginal Ring Birth Control Devices (Inv. No. 337-TA-768).  In the Order, ALJ Pender granted-in-part Respondents Merck & Co., Inc., Schering-Plough Corporation, Organon USA, Inc., and N.V. Organon’s (collectively, “Merck”) motion to quash subpoenas ad testificandum and duces tecum directed to Dr. Marilyn Jerome, a non-testifying witness retained by Merck.

According to the Order, Merck explained that, although it had previously identified Dr. Jerome as a testifying expert and served an expert report containing her opinions, Merck has since re-designated Dr. Jerome as a non-testifying expert and, thus, under Federal Rule of Civil Procedure 26(b)(4)(D), her testimony and materials are shielded from discovery.  Further, Merck argued that, because Dr. Jerome is not a Rule 35 expert witness as defined by Rule 26(b)(4)(D)(i), and because Complainant Femina Pharma (“Femina”) cannot show “exceptional circumstances under which it is impracticable for [Femina] to obtain facts or opinions on the same subject by other means,” neither exception to Rule 26(b)(4)(D) applies.

Femina opposed the motion, asserting that Rule 26(b)(4)(D) does not shield the testimony of Dr. Jerome from discovery because she has first-hand knowledge of relevant underlying facts gained prior to being retained in connection with the present investigation.

The Commission Investigative Staff (“OUII”) joined Merck in support of its motion, arguing that Femina has not shown the existence of exceptional circumstances that would justify an exception to Rule 26(b)(4)(D).  First, OUII disagreed with Femina’s assertion that Dr. Jerome should be treated as an ordinary witness because her expert report makes clear that any opinions contained therein were “based upon her review of materials in this matter and on her education, experience, training, and skill.”  Second, OUII noted that it was unsure as to how Femina would be able to introduce any evidence obtained from the subpoena of Dr. Jerome because discovery had closed, Dr. Jerome would not be testifying at the hearing, no depositions remained, and none of the documents produced by Dr. Jerome would have a sponsoring witness.

After considering the arguments, ALJ Pender determined to grant-in-part and deny-in-part Merck’s motion.  In granting Merck’s motion to quash the subpoena ad testificandum, the ALJ found that, although Rule 26(b)(4)(D) “does not shield facts or opinions an expert held prior to being retained in connection with a litigation,” Femina failed to timely identify Dr. Jerome as a fact witness and only sought a subpoena after learning of the contents of her expert report.  Further, ALJ Pender determined that Femina offered no evidence suggesting that Dr. Jerome “is a unique actor or viewer with respect to transactions or occurrences that are part of the subject matter of this investigation,” such that it would be impracticable for Femina to obtain the information by other means.  Finally, ALJ Pender declined to quash the subpoena duces tecum, finding that Rule 26(b)(4)(D) applies to “interrogatories and depositions rather than requests for the production of documents” and that Merck failed to assert an independent basis to quash the subpoena duces tecum separate and apart from its motion to quash the subpoena ad testificandum.