In an Amended Order in Multidistrict Litigation against pharmaceutical manufacturers, one judge unintentionally perhaps highlighted the need for disclosure, not concealment, of evidence. Insurance coverage questions may become difficult if not impossible to decide if this pattern continues.
The Amended Order came in this MDL case: In Re: Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914 (N.D. Fla. March 15, 2018). It was an opinion denying motions for summary judgment because the Court ruled that there were genuine issues of material fact.
"Plaintiffs allege that, after taking Abilify as prescribed, they developed impulsive and irrepressible urges to engage in certain harmful behaviors, including impulsive gambling, eating, shopping, and sex. Defendants deny the allegations and maintain that Abilify could not, and did not, cause Plaintiffs' impulse control problems." In Re: Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 (N.D. Fla. March 15, 2018).
The Court held that there were genuine issues of material fact surrounding these allegations and denials in a huge record of apparently conflicting evidence:
Now, having carefully considered the law, the voluminous record, and the parties' arguments, the Court concludes that Plaintiffs have satisfied their burden to demonstrate that a genuine dispute of material fact exists as to whether Abilify can cause uncontrollable impulsive behaviors in individuals taking the drug.
In Re: Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 (N.D. Fla. March 15, 2018).
The problem is that the public cannot possibly know what the apparently conflicting evidence actually was. The opinion is riddled with holes for redacted evidence, like this one: "Moreover, the record reflects [*** REDACTED ***]." In Re: Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *26 (N.D. Fla. March 15, 2018). Say again, please; what is it that the record reflects?
We simply do not know a lot of what witnesses testified and documents revealed. "Portions of the briefing and record in this matter were filed under seal. This redacted version of the Court's Order omits references to information included in sealed materials." In Re: Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 n.1 (N.D. Fla. March 15, 2018). If a judge omits references to evidence, yet tells us that the Court's ruling is based on what appears to the Court to be contradictory evidence, what value does that serve and whose?
Arguably not the value of the public, who pay to maintain the judicial system.
In particular, how can insurance coverage questions be resolved in this situation? Does the blacked-out evidence show that consequences or side-effects from using this drug were perhaps neither expected nor intended from the standpoint of the pharmaceutical companies, and thus not a covered "accident" or "occurrence"?
Is it possible that there is an exclusion applicable to this evidence?
How can we know answers to questions like these without seeing the evidence?
And whose interests are served by blacking out the evidence in cases like this?
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