Case2:06cv00890TSBCWDocument1067Filed04/26/12Page1of12

Brent O. Hatch (5715) bhatch@hjdlaw.com HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, Utah 84101 Telephone: (801) 363-6363 Facsimile: (801) 363-6666 William F. Lee (pro hac vice) william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, Massachusetts 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000

Richard T. Mulloy (pro hac vice) richard.mulloy@dlapiper.com DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, California 92101-4297 Telephone: (619) 699-4787 Facsimile: (619) 764-6787

Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pharmacia Corporation

UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION BRIGHAM YOUNG UNIVERSITY, a Utah non-profit educational institution; and Dr. DANIEL L. SIMMONS, an individual, Plaintiffs, vs. PFIZER INC., a Delaware corporation, G.D. SEARLE & COMPANY, a Delaware corporation, G.D. SEARLE LLC, a Delaware limited liability company, MONSANTO COMPANY, a Delaware corporation; and PHARMACIA CORPORATION, a Delaware corporation, Defendants.

DEFENDANTS MEMORANDUM IN SUPPORT OF EMERGENCY MOTION FOR CHANGE OF VENUE Case No. 2:06cv00890 Judge: Honorable Ted Stewart Magistrate Judge: Honorable Brooke C. Wells

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page2of12

As 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 Young University and its lawyers, in an effort to press every advantage, have intentionally acted to thwart that goal. Yesterday, on April 24, 2012, BYU went on the offensive in the media, and BYU made inflammatory and prejudicial statements, which were widely broadcast in Salt Lake City media 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 a change 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. BYUs Deputy General Counsel, David Thomas, was present in the courtroom. Mr. Thomas has appeared 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. Thomass 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 Court solicited counsels suggestions about the most effective steps that could be taken to mitigate any harm. 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 -1-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page3of12

that the Court was concerned that any public statement, once made, would live on in the Internet waiting to be discovered by an actual or potential juror. Instead, Pfizers concern about BYU using the press to taint the venire had been raised by Pfizer in a sidebar conference at the hearing on March 9, 2012. As a result of that concern, the Court cautioned both parties. Stunningly, within twenty-four hours of this Tuesdays pretrial conference, BYUs Deputy General 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 BYUs case, on its requested damages, and on 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 the entire venire to arguments that it rightly feared it would be unable to make in court. Moreover, BYUs offensive came without any warning to the Court or to the defendants.1 During the discussion of steps to mitigate the risk of juror bias at the pretrial conference, neither Mr. Thomas nor any other BYU attorney gave any indication that BYU had video of Dr. Simmons commenting on the case, which it planned to provide to media outlets, or that Mr. Thomas intended to give media interviews about the case the following day. Particularly in view of the Courts admonition, BYU and its counsel knew better than to taint the jury pool. Moreover, BYUs Deputy General Counsel, David Thomas, had an ethical

In one instance, a reporter contacted Pfizer immediately prior to a story airing, and asked for a response (which a Pfizer representative provided by telephone in an attempt to correct misrepresentations made by BYU). -2-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page4of12

obligation not to make the inflammatory statements he made2including the libelous response Very much so when asked, Is this a case of theft?3 As Rule 3.6(a) of the Utah Rules of Professional Conduct 3.6(a) makes perfectly clear: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. BYUs effort was a coordinated campaign. As the anchor for one news story put it, BYU [has gone] on the offense, and its not on the gridiron.4 Within the space of five hours, three stations ran storiessome multiple timesall referring to BYUs desire to have their story told. So concerted was the effort that, within a twenty-four hour window, the stories were broadcast a total of at least fifteen times. (See Exhibit A.) The stories were estimated to have been seen in households in the Salt Lake area a total of 623,237 times. (See id.) Moreover, because these stories now live on the Internet, the Courtand the venirecan observe them first hand (at the links below). To demonstrate that BYU sponsored the stories, and to demonstrate the harm worked by them, summaries of those stories appear below.

The April 25, 2012 KUTV evening news broadcast of the interview with Mr. Thomas is available at http://www.kutv.com/news/top-stories/stories/vid_1092.shtml. 3 In order to constitute slander per se, without a showing of special harm, it is necessary that the defamatory words fall into one of four categories: (1) charge of criminal conduct, (2) charge of a loathsome disease, (3) charge of conduct that is incompatible with the exercise of a lawful business, trade, profession, or office; and (4) charge of the unchastity of a woman. U.S.A. United Staffing Alliance, LLC v. Workers Compensation Fund, 213 P.3d 20, 26 (Ut. Ct. App. 2009), quoting Allred v. Cook, 590 P.2d 318, 320 (Utah 1979) (emphasis added). 4 KUTV 2 (CBS) News, available at http://www.kutv.com/news/topstories/stories/vid_1171.shtml. -3-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page5of12

A.

KUTV 2CBS5

Appearing on camera, Dr. Simmons says, We want to set the record straight. . . . Pfizer [used] my materials, my ideas, my plan, my intellectual property. That video does not reflect a happenstance comment caught by an independent news entity. Rather, as noted in the top left corner of the video, it was prepared and provided Courtesy: BYUtv. This was a professionally produced video for purpose of influencing the venireSimmons even appears in his white lab coat for effect. A reporter then adds, Drug maker Pfizer took what was his [Dr. Simmonss] to make the drug Celebrex. BYU Deputy General Counsel Thomas then appears on camera. In response to the question, Bottom line, is this a case of theft? he responded Very much so. He then said [that] class of drugs was developed, and Pfizer has profited in it immeasurably. When asked how much? he responded $35 billion, from Pfizers documents. (emphasis added).6 This interview was not Mr. Thomas first attempt to condition the jury. On March 27, 2012 he told the Salt Lake Tribune that the ruling on Dr. Simmons co-inventorship claim is particularly gratifying because, if the jury embraces BYUs evidence, Celebrex can become much more affordable. (Cf. Defendants Motion in Limine No. 9 To Preclude Plaintiffs from Referencing That BYU Only Files Lawsuits for Good Reason (Dkt. 1004).)

5 6

Available at http://www.kutv.com/news/top-stories/stories/vid_1171.shtml. The Pfizer documents to which Mr. Thomas presumably was referring include confidential documents concerning Pfizers profits from sales of Celebrex. In this respect, Mr. Thomass statement may also have resulted in a violation of the Courts protective order. -4-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page6of12

B.

KSTU 13FOX7

Both Dr. Simmons and BYU Deputy General Counsel Thomas appeared in this story as well. The anchor characterizes the case as potentially the largest civil lawsuit in the history of the state of Utah. The report then seeks to establish BYUs veracity as a plaintiff: For only the second time in two decades Brigham Young University has filed a lawsuit. A casual review of only this Courts own docket shows that this is false.8 (Cf. Defendants Motion in Limine No. 9 To Preclude Plaintiffs from Referencing That BYU Only Files Lawsuits for Good Reason (Dkt. 1004).) Dr. Simmons then appears on camera (again, in video provided by Courtesy: BYUtv) to state that I discovered the COX-2 enzyme doing cancer research. Then, apparently previewing his desire to be an expert witness at the trial (cf. Defendants Motion To Exclude Expert Testimony from Plaintiff Dr. Daniel L. Simmons), he opines Pfizer has always represented that Celebrex arose solely through their own research. We now know thats not true. BYU Deputy General Counsel Thomas adds that [Celebrex] is a seminal discovery and without Dan Simmons it would not have occurred. A reporter states that BYU and Simmons contracted with Monsanto to develop the new super-drug and that the original contract called for BYU and Dr. Simmons to split reasonable royalties which experts put at 15% of Pfizers $35 billion in Celebrex sales. It works out just about $10 billion for BYU and Dr. Simmons. At the same time, the following graphic appears onscreen:
7 8

Available at http://fox13now.com/2012/04/25/byu-in-10b-civil-suit-with-pfizer/. See BYU v. Hitachi High Tech. America, Case No. 2:08-cv-946; BYU v. Maris Del Re Gallery, Inc., 2:92-cv-596; BYU v. Natl Accident Ins. Underwriters, Inc., 2:96-cv-0013. -5-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page7of12

In those sentencesand with that graphicthe story communicates to the venire that experts have opined that BYU is entitled to a 15% recoverydespite the fact that the only expert who has done so was retained by BYU and is the subject of a pending Daubert motion. (Cf. Defendants Motion to Exclude Testimony of Dr. Richard Gering (Dkt. No. 1013).) The story ends with an obvious attempt to pander to the jury pool. BYU is quoted as saying, If BYU wins, Dr. Simmons, who heads the cancer research center at BYU plans to use the money to fund further cancer research. (Cf. Motion in Limine to Preclude Plaintiffs from Referencing Purported Favorable Consequences of a Jury Finding for the Plaintiffs (Dkt. No. 1018).) 3. KTVX 4ABC9

The anchor leads the story by saying BYU is suing Pfizer for $9 Billion and continues by saying The university says that the company stole information from a professor that led to the development of Celebrex. *
9

Available at http://tinyurl.com/ch8gymq. -6-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page8of12

BYUs campaign has apparently not concluded. Pfizer was contacted by NBC-KSL (Channel 5), which indicated that it intended to run a similar story today. As the Court is aware, KSL is owned by the same entity that controls BYUThe Church of Jesus Christ of Latter-Day Saints. KSL and the Deseret News previously ran lengthy one-sided stories with pre-packaged video and other material from BYU immediately after the hearing on March 9, 2012. Those articles and video have apparently had the desired effect. Online comments to the Deseret News story show that BYUs media campaign has caused people to want to be on the jury (having prejudged the case). One commenter stated: I wish I could be called for jury duty on this one, . . . I gotta feeling that if BYU has utilized so much money in legal fees, they have done it based on solid evidence. Comment of catdude85.10 Similar comments from other potential jurors appear in other stories: If BYU is anything, it is honest and patient. Time will not wear away the findings of Mr. Simmons and he will get his day. Who would you side with.....Big Pharma or BYU? HHmmmmm Comment of Nephi, Federal rulings set stage for BYU-Pfizer trial in Utah, Salt Lake Tribune, Mar. 27, 2012, available at http://www.sltrib.com/sltrib/money/53802532-79/byu-simmons-pfizercelebrex.html.csp. The harm that BYUs campaign has caused cannot be undoneand surely Pfizer should not have to bear the risk that it can be. The comments of catdude85showing a desire to get on the jury while harboring biasconfirm that even thorough voir dire is likely not enough to ensure a fair trial, in light of BYUs media offensive. The Court was rightfully concerned about securing an unbiased jury, and avoiding the perils of internet research, even before BYU
10

Of course, this viewers feeling is only reaffirmed by the incorrect news reports that BYU has only filed two lawsuits in the past two decades. -7-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page9of12

embarked on its most recent effort to condition the venire. Now that the BYU-sponsored news stories have aired and are available onlineand readily discoverable by anyone who runs a Google search for Pfizer and BYUat least some jurors (or their family members) are almost certain to see or remember these stories at some point during the course of the eight-week trial. Whatever hope there may have been of obtaining jurors who, despite potential ties to important local institutions such as BYU or the LDS Church, could be impartial, BYU has now willfully made that task impossible. Every major broadcast television station has now aired (or will air today) a story sponsored by BYU. This is not the typical case in which news stories appear because news outlets are reporting an event. Instead, BYU started a press campaign to benefit its litigation positionas one station correctly put it, BYU is going on the offensive. II. VENUE SHOULD BE TRANSFERRED AS A RESULT OF BYUS CAMPAIGN TO TAINT THE JURY POOL BY MR. THOMAS'S AND DR. SIMMONS STATEMENTS. Even in a case in which neither party is responsible for the prejudicial pretrial publicity, the Tenth Circuit has recognized the need to take steps to cure the prejudice. [W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. House v. Hatch, 527 F.3d 1010, 1023 (10th Cir. 2008) (quoting Sheppard v. Maxwell, 384 U.S. 333, 362-63 (1966)) (emphasis added); see also, e.g., Latiolais v. Whitley, 93 F.3d 205, 207 (5th Cir. 1996) (There is a constitutional right to a fair trial in a civil case.). Certainly there is a reasonable likelihood of an unfair trial when hundreds of thousands of households have been exposed to BYUs media offensive. But here the situation is even worse than the typical case of prejudicial pretrial publicity because it is entirely of BYUs own making and design, affirmatively using not only BYUs -8-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page10of12

principle witness, but also its counsel of record in this case. See, e.g., United States v. Mitchell, 752 F. Supp. 2d 1216, 1222 (D. Utah 2010) (quoting United States v. Sabhnani, 599 F.3d 215, 232-33 (2d Cir. 2010) for principle that district court may consider [a partys] role in generating adverse publicity in deciding a motion for change of venue). BYUs campaign has seriously and foreseeably prejudiced Pfizer. In upholding the constitutionality of a Nevada disciplinary provision nearly identical to the rule applicable to BYU Deputy General Counsel Thomas, the United States Supreme Court has identified the important interests that underpin such a rule: The substantial likelihood [of influencing the jury] test embodied in Rule 177 [of the Nevada ethical rules] is constitutional under this analysis, for it is designed to protect the integrity and fairness of a States judicial system, and it imposes only narrow and necessary limitations on lawyers speech. The limitations are aimed at two principal evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system. Extensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effects of statements such as those made by petitioner. The State has a substantial interest in preventing officers of the court, such as lawyers, from imposing such costs on the judicial system and on the litigants. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991) (emphasis added and citations omitted). BYUs campaign trampled on the very interests behind Utah Rule of Professional Conduct 3.6, the interests that lead the Court to caution counsel at the sidebar on March 9, 2012, and the interests that caused the court to discuss the jury issues at the April 24, 2012 hearing. By their media campaign, BYU, Dr. Simmons, Mr. Thomas were shamelessly pandering to the jury pool. The result will be to precondition even more potential jurors like the one who commented I -9-

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page11of12

wish I could be called for jury duty on this one. Pfizer should not be asked to bear the risk deliberately created by BYUthat extensive voir dire may not be able to filter out all of the effects of pretrial publicity. Gentile, 501 U.S. at 1075. And time alone can not abate the risk any local juror who has access to the Internet and an affinity for BYU (or who simply remembers that there was some press about this case) will have the ability to call up the stories that BYU sponsored. No motion in limine or Daubert motion can wipe from the Internet BYUs suggestion that a multi-billion dollar verdict will be used to conduct cancer research. Respectfully, a change of venue is required. Only in a jurisdiction where there was no such pretrial media offensive, and in which BYU and other local institutions are less prominent in the life of potential jurors, can the prejudice BYU has worked be ameliorated. The Southern District of New York, where Pfizer is located, is a district where this case could originally have been brought, is a district where the parties can obtain a fair trial, and is a district where the taint of BYUs campaign has the highest probability of being avoided. Alternatively, the District of Missouriwhere the Monsanto facility that developed COX-2 was locatedis likewise a convenient jurisdiction in which the parties can get a fair trial. This Court should order transfer to one of those two districts. CONCLUSION At the outset of the pretrial conference, the Court asked whether Pfizer was ready to go to trial. Pfizer responded yes. The Court then asked whether Pfizer was ready to go to trial on May 29, 2012. Pfizer responded yes. Both answers were true and heartfelt when given. As a result of BYUs conduct, neither answer is true today. On the very next day after Pfizer gave those answers, BYU launched a campaignstarring its principle witness and one of its lawyersto irreparably taint the jury pool. It did so - 10

Case2:06cv00890TSBCWDocument1067Filed04/26/12Page12of12

effectively, utilizing the impermissible themes that are the subject of pending motions in limine such as its claims that BYU never sues unless it is absolutely necessary (without revealing the contingency fee), that experts agree that BYU is entitled to 15% of Pfizers profits, and that the proceeds of a verdict will fund cancer research. It did so knowingly, notwithstanding the Courts concern about difficulty in securing an impartial jury. It is unfair for BYU now to be permitted to argue, no harm, no foul or to extol the virtues of voir dire or other remedies to cure the taint it willfully implanted into the jury pool. Respectfully, there is no reason to reward BYUs behavior, or suggest that others emulate it. Accordingly, Pfizer respectfully requests that the Court vacate the trial date and transfer this matter to the United States District Court for the District of Missouri (the Research Agreement applied Missouri law) or the United States District Court for the Southern District of New York (where Pfizer is located). To the extent that the Court needs additional information concerning BYUs campaign and those who participated in it, the Court should reopen discovery to permit discovery into the events of the last few days. Respectfully submitted this 26th day of April, 2012. /s/ Brent O. Hatch Brent O. Hatch H ATCH , J AMES & D ODGE , P.C. Richard T. Mulloy DLA PIPER LLP William F. Lee WILMER CUTLER PICKERING HALE AND DORR LLP Attorneys for Defendants Pfizer Inc., G.D. Searle LLC, and Pharmacia Corporation _

- 11