AMA Preserves Peer Review Confidentiality

Client:	American Medical Association
Representation:	Defense against motion to compel
Date:	April 2008
Locations:	U.S. District Court, Northern District of Illinois

Summary:

Schiff Hardin won a landmark victory for the American Medical Association (AMA) in its dispute with a major pharmaceutical company over the confidentiality of the peer review process used by the AMA's journals. The case received significant coverage in the media, particularly in the medical and product liability press.

The dispute arose out of a federal product liability and consumer protection multi-district litigation (MDL) proceeding involving thousands of cases filed regarding two well-publicized anti-inflammatory drugs, one of which has since been withdrawn from the market.

Over the course of the MDL, lawyers for both sides relied heavily on published medical literature to support their positions and experts, including articles from two of the AMA's well-regarded journals, The Journal of the American Medical Association (JAMA) and the Archives of Internal Medicine (AIM).  Like most premier medical journals, JAMA and AIM vigorously screen the papers they receive through a confidential peer review process. The journal editors keep confidential the identities of its peer reviewers, any pre-publication revisions and the identity of manuscripts it elects not to publish.

In early 2008, the pharmaceutical company filed a motion in the Northern District of Illinois to enforce its subpoenas seeking these peer reviewed materials.  The AMA retained Schiff Hardin to defend its interests. Our attorneys worked closely with in-house counsel for the journals to develop a comprehensive opposition that vigorously asserted multiple privileges in defense of the AMA's position, further contending that the materials sought were not sufficiently relevant to justify compromising JAMA's peer review process.

On March 14, 2008, Magistrate Judge Arlander Keys agreed with the AMA, and denied the motion to compel.

Judge Keys held that anonymous peer review commentaries were unlikely to have been relied upon by any consumer, physician or health insurance administrator, or pharmaceutical company, and also agreed that the AMA's interests in protecting the integrity of its peer review process were substantial.

Finding that the balance of interests favored the AMA under the discovery provisions of the Federal Rules of Civil Procedure, Judge Keys quashed the subpoena in a multi-page decision believed to be the first of its kind on this issue.

In Re: Bextra and Celebrex marketing sales practices and product liability litigation, Case No. 08 C 402. U.S. District Court, Northern District of Illinois, Eastern Division (March 14, 2008)