IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK [insert individual case information] ) ) MDL NO. 1789 ) ) ) PLAINTIFF S FIRST SET OF INTERROGATORIES TO DEFENDANT PLEASE TAKE NOTICE that, pursuant to Rule 33 (A) of the Federal Rules of Civil Procedure, Plaintiff [insert plaintiff name] propounds the following Second Set of Interrogatories to Defendant Merck. INSTRUCTIONS (a) Each interrogatory set forth herein refers to information in the custody, control, and possession of Defendant or known to Defendant, as well as in the custody, control, and possession of or known to Defendant s counsel, representative, agents, servants, investigators, and consultants, and unless otherwise privileged, their counsel, employees, representatives, agents, servants, investigators and consultants. (b) If there is a claim of privilege with respect to any interrogatory, please identify every such document in the response, and include in the identification a description of the document, the date of the document, the names of the addresses and addressers, the identity and address of every person to whom a copy was given or communicated, the general subject matter of the document, a statement of the facts constituting the basis for any claim of privilege, and the specific basis on which the privilege is claimed. 1
(c) Each interrogatory, as provided by law, shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection shall be stated. The answers are to be signed by the person making them, and the objections signed by the attorney making them. Answers to these interrogatories, or objections in lieu thereof, shall be served within 30 days from the service of this document. (d) If you cannot respond to an interrogatory for any other reason, respond to the extent possible, stating your reasons for your inability to respond in full. (e) These interrogatories shall be deemed continuing, to the full extent required or permitted under the Federal Rules of Civil Procedure 26 (c), so as to require supplementation when Defendant obtains access, custody, possession or control of any information not previously provided, which is responsive to any of these interrogatories. (f) The headings used herein are for guidance and clarity only and should not be deemed to restrict or broaden any request. DEFINITIONS 1. Defendant is used to refer to defendant Merck and/or its predecessor(s). 2. YOU, YOUR, YOURS, or MERCK refers to Defendant MERCK AND COMPANY, as well as all its partners, director, officers, employees servants, agents, attorney, joint ventures, or other representatives, including all corporations and entities affiliated with MERCK AND COMPANY and any other named Defendants in this lawsuit. The terms YOU or YOUR shall also include all predecessor business entities, as well as any predecessor s partners, directors, officers, employees, 2
servants, agents, joint ventures or other representatives. The terms YOU or YOUR shall also include all foreign subsidiaries or foreign parent companies, as well as any foreign subsidiaries or parent companies partners, directors, officers, employees, servants, agents, joint ventures or other representatives. 3. FDA means the United States Department of Health & Human Services, United States Food & Drug Administration, any committee, subcommittee or advisory committee thereto, and any person, employee or agent acting as a representative thereof. 4. PDR is used to refer to the Physicians Desk Reference. 5. Oral and Dental Complications shall refer to medical or dental conditions, diseases, or adverse events involving the teeth, maxilla, mandible, palate, and gums, including but not limited to the temporomandibular joint. 6. Physician refers to any healthcare provider, regardless of degree or specialty, including but not limited to medical doctors, allopathic physicians, osteopathic physicians, dentists, oral surgeons, maxillofacial surgeons, periodonists, endodontists, orthodontists, physicians assistants, or nurse practitioners. 7. Dental or Medical Association shall refer to any formal association of physicians, including national, state and foreign associations, including but not limited to the American Dental Association, the American Medical Association, the American Academy of Endodontists, the American Bone 3
and Mineral Society, and the American Academy of Oral and Maxillofacial Surgeons. 8. Document is used in its broadest sense, and means the original and any non-identical copy, regardless of origin or location. Typical categories of material included within the term document are: books, pamphlets, periodicals, memoranda (including those of telephone and in-person conversations), letters, reports, notes, telegraphs, statements, emails, records, diaries, minutes, bulletins, circulars, brochures, studies, instructions, working papers, charts, work assignments, drawings, prints, flow sheets, graphs, invention disclosures, photographs, photomicrographs, microfilm, medical and hospital records and reports, x- ray photographs, drafts, advertisements, catalogs, paper, indices, tapes, disc, data sheet, or data processing material, or any handwritten, recorded, transcribed, punched, taped, filmed, or graphic matter, however, produced or reproduced in Defendant s possession, custody, or control or to which Defendants have had access. 9. Each demand hereinafter set forth not only calls for your knowledge, but also for all knowledge that is available to you by reasonable inquiry, including inquiry of your employees, representatives, agents, and attorneys. 10. If you cannot answer the following demands in full and complete detail after exercising due diligence to secure the information to do so, please so state and answer to the extent possible, specifying in each instance your inability to answer the remainder and stating whatever information or 4
knowledge you have concerning the unanswered portions, and to the best of your knowledge the names, addresses, and telephone numbers of all persons and organizations where such information is, will be or is believed to be. 11. In answering these demands, you are requested to answer each demand and subdivision thereof fully, completely and separately. You are hereby notified that at least as to those demands that are unanswered or as to which you claim an inability to answer fully and completely for the reason that discovery is continuing, the undersigned will apply to the court for an order directing that these demands be deemed continuing; that upon acquiring any information response thereto after the service of answers hereto, you will be required to serve supplemental answers containing such later acquired information; and that you will be precluded at the trial of this action from introducing evidence relating to the subject matter of these demands which you have not disclosed by these answers or by supplemental answers thereto. 12. If any interrogatory is deemed to call for the production of privileged or otherwise protected information or materials, YOU must provide the following information in a written response, designating and identifying such information withheld from production on grounds of privilege: (a) (b) The reason for withholding the information A statement of the legal basis for the claim of privilege, work product or other ground for non-disclosure. (c) A brief description of the information, including: 5
(i) (ii) The date; The number of pages, attachments, and appendices if a documents; (iii) The name(s) of the source(s) or preparer(s) of the information and identification by employment and title of each such person; (iv) The name of each person who was involved with or has had access to or custody of the information, together with an identification of each such person; (v) (vi) The present custodian(s); and The subject matter of the information, and in the case of any information relating or referring to a meeting or conversation, identification of such meeting or conversation, in sufficient detail to enable the Court to determine eth propriety of any claim of privilege. 6
INTERROGATORIES TO DEFENDANT MERCK & COMPANY INTERROGATORY NO. 1: Please identify all persons who provided information responsive to these interrogatories indicating the person s name, address, relationship to the defendant and to which interrogatory or interrogatories they provided answers. INTERROGATORY NO. 2: In Plaintiff=s Profile Form, plaintiff identified his/her prescribing health care provider(s) (hereinafter plaintiff s prescribing healthcare providers ). If you have ever retained any of plaintiff=s prescribing healthcare providers as a Athought leader,@ a member of Merck=s Speaker Program, a Merck Clinical Investigator, or a consultant in any other capacity on the subject of osteoporosis, osteonecrosis, and/or any other conditions, please state: a) The identity of the heath care provider consultant:. b) The dates they were affiliated with Merck: c) The amount of money Merck paid in expenses, honoraria and fees, per calendar year. d) Please identify (via title, author, location, etc.) or produce all consulting agreements and contracts. 7
INTERROGATORY NO. 3: For each of plaintiff=s prescribing healthcare providers identified in Interrogatory 2 above, please state whether they were ever invited to attend and/or did in fact attend any Merck sponsored conferences or events. If your answer is Ayes,@ please state: a) The identity of the health care provider attendee:. b) The title, location and date of the speaker=s program attended: c) The topic of the speaker=s program: d) All speakers at the speaker=s Program: e) Please provide or identify the agenda/brochure for the conference or program INTERROGATORY NO. 4: For each of plaintiff=s prescribing healthcare providers, please state whether the provider(s) have ever requested information concerning Fosamax or Fosamax Plus D, its indications, its effects and/or its risks. If you answer is yes, please state: 8
a) The identity of the healthcare provider(s): b) Please identify (via title, author, location, etc.) and produce the document(s) which refer to your communication with plaintiff s prescribing healthcare provider(s). c) Please identify (via name, last known address and phone number) the Merck sales INTERROGATORY NO. 5: representative(s) ( detailer(s) ) assigned to the prescribing healthcare provider(s) listed in subsection a) above, for the time period during which plaintiff was receiving prescriptions from the provider. With respect to each of plaintiff=s prescribing healthcare providers, please state whether you have currently or have ever had access to any database or information which purports to track any of plaintiff s prescribing healthcare providers prescribing practices with respect to Fosamax, Fosamax Plus D, or any other osteoporosis medication (including, but not limited to the products(s) prescribed, the number of prescriptions, the number of refills, number of samples and the time frame when these products were prescribed or (re)filled): If your answer is yes, please state: a) The identity of the healthcare provider(s): b) The database(s) which you are describing, including their title(s), author(s), location(s). 9
INTERROGATORY NO. 6 Did you advertise Fosamax or Fosamax Plus D in the Media Market that plaintiff lived at the time that he/she took Fosamax or Fosamax Plus D? If yes, please identify: (a) the advertisement and the intended media marketplace (b) the nature of the media (print, t.v., radio, etc.) (c) the identity of the media outlet (d) the dates that advertisements ran and the cost of the campaign INTERROGATORY NO. 7: If you advertised Fosamax or Fosamax Plus D in the Media Market that plaintiff s prescribing healthcare provider(s) office(s) were located at the time plaintiff Fosamax or Fosamax Plus D, please identify: (a) the advertisement and the intended media marketplace (b) the nature of the media (print, t.v., radio, etc.) (c) the identity of the media outlet 10
(d) the dates that advertisements ran and the cost of the campaign (DEFENDANT) Name: By: Print Its: STATE OF COUNTY OF The foregoing instrument was acknowledged before me on this day of, 2007, by, as for (defendant) and he/she is personally known to me or has produced as identification, and did not take an oath. NOTARY PUBLIC Type Name: My Commission Expires: Commission No.: 11
CERTIFICATE OF SERVICE On this day of, 2007, I certify that I mailed a copy of the foregoing by first class U.S. Mail to the following: VENABLE LLP HUGHES HUBBARD & REED, LLP Paul F. Strain, Esq. Norman C. Kleinberg M. King Hill, Esq. Theodore V.H. Mayer David J. Heubeck, Esq. William J. Beausoleil Two Hopkins Plaza, Suite 1800 One Battery Park Plaza Baltimore, MD 21201 New York, NY 10004-1482 LEVIN, PAPANTONIO, THOMAS, MITCHELL ECHSNER & PROCTOR, P.A. TIMOTHY M. O BRIEN Florida Bar No.: 055565 316 South Baylen Street, Suite 600 (32502) P.O. Box 12308 Pensacola, FL 32591 850-435-7084 FAX: 850-435-7020 12