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Plaintiffs’ counsel in pharmaceutical product liability cases continue to pursue depositions of company sales representatives and seek to elicit testimony supporting their common theme that pharmaceutical companies disregard the health and safety of their consumers in the dogged, single-minded pursuit of sales and profits. In a recent pharmaceutical product liability multi-district litigation, core discovery consisted of depositions of the plaintiff, the prescribing physician, one treating physician, and a sales representative selected by the plaintiff. Based on our experience in that litigation we offer below three targeted practice pointers for preparing for and defending pharmaceutical sales representative depositions.

1. Be the Expert on Plaintiffs’ Litigation Themes and Supporting Proof And The Sales Representative Specific Facts.

Sales representative depositions are typically taken after significant discovery has been conducted addressing product research and development, clinical trials, regulatory activity and communications with FDA, drug labeling, pharmacovigilance, and general marketing. As such Plaintiffs’ litigation themes will have been well-formed by the time your sales representative is in the witness chair.

Plaintiffs’ counsel will likely not favor a “discovery” type deposition where counsel generally inquires as to the nature of the representative’s background, training, and responsibilities. Rather, Plaintiffs’ counsel will look to conduct a targeted cross-examination hoping the witness will provide sound bites (that can later be played for the jury) in support of Plaintiffs’ already established themes. You’ll want to be an expert on all of Plaintiffs’ themes and supporting proof so you can best prepare your witness for those lines of examination.

Expect that a number of Plaintiffs’ litigation themes will not touch on representatives’ areas of responsibility. For example, Plaintiffs may contend that the Company refused to conduct a clinical trial that Plaintiffs maintain should have been conducted. Plaintiffs may argue that the medication’s label failed to include a necessary warning or safety information/data.

Even though representatives have no involvement in the conduct of clinical trials or the content of a medication’s label, Plaintiffs’ counsel in the above-referenced litigation were not deterred from cross-examining the representative on those areas. Plaintiffs’ counsel will try repeatedly to push the representative to speculate and provide damaging testimony on matters outside her/his areas of involvement/responsibility.

As an expert on Plaintiffs’ litigation themes you can appropriately familiarize your witness with those themes and alleged supporting proof, as well as the company’s counter positions. This will decrease the chances at deposition that your witness will feel surprised or sense there is something she/he should know but doesn’t. Rather, your witness will remain composed in the pressure of the moment, and armed with “safe harbors,” refuse to speculate as to matters outside her/his areas of involvement/responsibility.

Typically, representatives are deposed after the depositions of the plaintiff and the prescribing and treating physicians. Ahead of your witness prep sessions you’ll want to know the case specific deposition testimony so you can appropriately address any testimony that could impact your witness.

Expect Plaintiffs’ counsel when examining your witness to take liberties with the testimony of the prescribing and treating physicians. For example, “Are you aware that (prescribing physician) testified that if the clinical trial data were just as I have now shown you it to be, that (prescribing physician) testified that she would have wanted to have that information, and that if she had had that information, she would have prescribed a different medication to Plaintiff?”

Make your witness aware of this tactic. The representative should not accept as true Plaintiff counsel’s characterization of witness testimony. If your witness has not read the depositions given by plaintiff and the prescribing and/or treating physicians, she/he is not placed in a position of having to comment upon or vouch for such deposition testimony (unless shown the actual testimony at deposition).

2. Spend Sufficient Time With Your Witness So You Build Rapport and Understand Their Concerns About Both The Deposition Process And Substantive Matters.

Spend enough time with your witness so you build rapport with her/him. The importance of this cannot be overstated. Most witnesses dread the prospect of cross-examination. A witness’ unfamiliarity with the process can cause apprehension. There may be specific substantive areas of examination that a witness fears or hopes to avoid. It takes time to understand any process and/or substantive concerns and the reasons for them so that you can then properly address them.

Securing adequate time with a witness can be a challenge. Representatives are busy, often on the road, and have numerous obligations. Time spent in deposition prep is disruptive and time away from the representative’s real job. Your witness may feel that spending ample time in prep is not necessary, that she/he is “good to go” already. A witness may be in a sort of denial and keep putting things off. From the company standpoint, witness prep is expensive. Despite these challenges, we’ve never had a witness post-deposition complain about being too prepared or spending too much time in prep. Rather each witness has expressed appreciation for the time spent with her/him.

In terms of a suggested structure for the prep sessions, consider an initial meeting with your witness where you provide an overview of the litigation and the deposition process. The witness can discuss her/his educational and employment history, experience with the company, and what a typical work day is like for the representative. At a second session you should consider a substantive discussion of Plaintiffs’ themes and tactics, witness responses and safe harbors, an extensive discussion of your witness’ detailing of the product, and deposition best practices.

After this work has been done, we strongly recommend conducting mock-cross examinations. In our experience mock cross-examinations are the most helpful component of witness prep. It is best that someone unfamiliar to the witness be brought in to conduct mock cross-examinations.

In this way you create some discomfort for the witness and give the witness a sense for what it will be like on deposition day. We believe it’s best for the mock-examiner to err on the side of being too aggressive with the witness, without being over-the-top. We like when witnesses tell us post-deposition that the mock examinations were more difficult than the actual deposition. Consider mock examination modules that last for 30 minutes to an hour, then break so you can debrief your witness and provide constructive criticism and comments.

Your witness is likely to feel most deflated after the mock cross-examination, as such comprises the “tearing down” phase. After the mock cross-examination(s), the focus should be building the witness back up and restoring confidence. We do not recommend any mock cross-examination the day before the deposition, rather consider a two-hour prep session where you and the witness go over the high points of themes, safe harbors, and best practices, and have the witness leave refreshed for the next day.

3. Prepare The Witness For The Shaming Tactic Employed By Plaintiffs’ Counsel.

Plaintiffs’ counsel employ a sort of “shaming technique” in an effort to make the representative uncomfortable and increase the chances the witness will provide damaging testimony. Plaintiffs’ counsel will try to make a sales representative feel defensive about the nature of her/his job and any success achieved. In addition, Plaintiffs’ counsel will try to make the representative feel that her/his knowledge of the product and its label is inadequate.

This tactic involves Plaintiffs’ counsel mischaracterizing the nature of the representative’s position and her/his responsibilities. It’s important to prepare your witness for this tactic so that she/he doesn’t become defensive and susceptible to offering speculative testimony. An effective way to counter the shaming technique is to emphasize in witness prep what the representative does in the real world and her/his responsibilities, and contrast that with Plaintiffs’ counsel’s mischaracterizations of those matters.

Plaintiffs’ counsel will try to make your witness feel like she/he is interested only in securing prescriptions, arguing that the more the product is prescribed, the more money the representative makes. Plaintiffs’ counsel will have reviewed your witness’ resume and LinkedIn page and will address in pejorative fashion any incentives earned. (Some witnesses feel the need prior to their deposition to edit their resumes or LinkedIn pages to remove any references to pre-pharma sales positions, sales rankings, earned incentives, etc. Inform your witness that such is not necessary or advisable and will only lead to more questions in the deposition).

There is of course a marketing component to the representative position, but that isn’t something the witness should be ashamed of or deny. The objective is to give the jury an accurate understanding of the position and its responsibilities.

A representative is a resource to health care professionals. The representative provides information to prescribers, but the prescribing decision is of course left to the prescriber. The company provides the representative with the information presented to health care professionals. In order for a representative to earn an incentive, her/his detailing of the product must comply with company/legal guidelines. If your witness can focus on these fundamentals of the position, she/he will be better positioned to counter Plaintiffs’ counsel’s characterization of the position.

Plaintiffs’ counsel will look to shame your witness as to her/his command of the content of the label. The label is the foundation of the representative’s discussion of the product, and representatives take pride in their knowledge of the label. Plaintiffs’ counsel may take issue with language contained in the label or argue that based on clinical data the company failed to include appropriate language in the label. This can lead to a rather detailed cross-examination of your witness regarding clinical trials, and what is/is not in the label and the reasons therefor, matters outside the representative’s purview.

Plaintiffs’ counsel will present the examination as anchored to the label, but again most of the examination involves matters outside the label. If the text at issue does appear in the label, it is often cherry picked by Plaintiffs’ counsel for lawsuit purposes and has not been raised by healthcare professionals to representatives in the conduct of their business.

When faced with this line of examination the witness may feel she/he should know something she/he doesn’t and feel compelled to speculate. Here again it is best in prep to emphasize the realities of the representative’s position. A representative can only discuss what is in the label. The representative has no involvement in what language does and does not appear in the label. A representative is not provided with clinical trial data absent what appears in the label. A representative has no involvement in the conduct of clinical trials.

KEY TAKEWAYS:

1. Plaintiffs’ counsel seek to use deposition testimony of sales representatives to support their contention that pharmaceutical companies disregard the health and safety of consumers in favor of the single-minded pursuit of sales and profits.

2. You can best prepare your witness for deposition when you are an expert on plaintiffs’ litigation themes and supporting proof and the representative specific facts.

3. Spend the time it takes to develop a rapport with your witness and understand and address her/his concerns about the deposition process and any substantive matters.

4. Counter the shaming technique employed by Plaintiff’s counsel by having the representative focus on the realities and responsibilities of her/his position.

This article was first published in the Drug and Medical Device Committee Newsletter (RX For The Defense) for the Defense Research Institute (DRI) on 3/13/2020.