A CROSS EXAMINATION SUGGESTION

A CROSS EXAMINATION SUGGESTION


We all have our own way of preparing for cross examination and for the style we adopt during the process. I thought I’d reprint a section of part of a cross examination preparation from a drug company products case to give you an general idea  of one of the steps I take in preparing for cross examination. This would represent part of a whole examination and would be part of the preparation. The actual cross examination could end up in outline form or it might be a stack of exhibits with tags containing ideas.

I’ve publishing it in it’s gross form before the additional editing and without explaining the significance of some of the outline as it’s simply an example to illustrate one way to prepare for cross examination. It would be reviewed and revised and finally end up in a brief outline format. This is how I start the process.

                                                   CROSS EXAM POINTS

COLLATERAL ATTACK

  1. lack of materials to base opinion upon
  2. how many hours to date
  3. number of times testified for plaintiffs vs
  4. total fees to date
  5. if a drug company ignores indications of risk and danger to children they would be wrong
  6. In the drug industry there are safety red lights or warnings aren’t there?
  7. wouldn’t you agree we have the right to trust pharmaceutical company to protect us from risk and danger?
  8. how much is hourly rate
  9. number of times testified for defendants
  10. relationship to: defense lawyers, experts etc.
  11. would you agree a drug company must hold the safety, health and welfare of the public paramount in selling their products

GENERAL POINTS

  1. FEES & RELATIONSHIP TO DEFENSE & ATTYS 
  2. TALKED TO ATTYS?? 
  3. PHARMACEUTICAL CO’S DUTY OF REASONABLE PRUDENCE 
  4. DUTY TO USE REASONABLE MEANS TO:

(1)       DISCOVER AND ELIMINATE PREVENTABLE RISK OF SEIZURE, BRAIN OR DEATH CAUSED BY SIDE EFFECT 

(2)       IF NOT PREVENTABLE, TO GIVE TIMELY & ADEQUATE WARNINGS 

(3)       TO ANALYZE, INVESTIGATE, AND TEST IT’S PRODUCTS 

(4)       TO STAY ABREAST OF MEDICAL RESEARCH, SCIENTIFIC KNOWLEDGE AND MEDICAL PUBLICATIONS ABOUT IT’S PRODUCTS 

  1. PHARMACEUTICAL CO’S DUTY TO WARN 
  2. ALWAYS WRONG TO DELIBERATELY WITHHOLD OR CONCEAL DANGERS BECAUSE OF FEAR OF HURTING SALES 
  3. COMPANY SHOULD: 

(1)       USE METHODS OF WARNING WHICH ARE EFFECTIVE 

(2)       USE WARNINGS WHICH SUFFICIENTLY INFORM GENERAL PRACTIONIER AS WELL AS SPECIALIST 

(3)       GIVE COMPLETE AND ACCURATE INFORMATION PROMPTLY 

(4)       GIVE WARNING ABOUT DANGEROUS ASPECTS OF IT’S PRODUCT EVEN AFTER IT HAS BEEN PUT ON THE MARKET

  1. DUTY ARISES WHENEVER REASONABLE PERSON USING PRODUCT WOULD WANT TO BE INFORMED OF RISK

 

(1)       DO YOU HAVE AN OPINION, BASED UPON REASONABLE PROBABILITY, WHETHER: 

(a)       THESE DEFENDANTS, KEY & SCHERING, UTILIZED METHODS OF WARNING PHYSICIANS LIKE DR. EDWARDS, WHICH WERE REASONABLY EFFECTIVE, TAKING INTO ACCOUNT, BOTH THE SERIOUSNESS OF THE DRUG’S SIDE EFFECTS, ADVERSE REACTIONS OR DANGERS AND THE DIFFICULTY INHERENT IN GIVING SUCH INFORMATION PHYSICIANS LIKE DR. EDWARDS WHO OUGHT TO BE SO INFOMRED? 

(b)       THESE DEFENDNATS GAVE TIMELY AND ADEQUATE WARNINGS TO THE MEDICAL PROFESSION OF THE DANGERS FROM THEIR PRODUCT THEO DUR? (Cirpo interaction, Saturation kinetics, Baldini rule re stat levels) 

(e)       THESE DEFENDANTS KNEW OR HAD REASON TO KNOW OF THESE DANGERS? 

  1. NATURE OF WARNINGS 
  2. WARNINGS: 

(1)       ARE A LAST RESORT – ELIMINATE DANGER IS FIRST STEP 

(2)       MUST COMMUNICATE SERIOUSNESS OF POTENTIAL HARM AND HOW TO AVOID IT 

(3)       SHOULD BE SUFFICIENTLY PROMINENT IN SIZE LOCATION AND OTHER FACTORS TO ASSURE IT WILL BE SEEN & READ 

Note: See boxed warnings from PDR for Schering products 

  1. PROMOTIONAL MATERIAL SHOULD INCLUDE DISCLOSURE AND WARNINGS RE SIDE EFFECTS, PRECAUTIONS & CONTRAINDICATIONS
  2.  
  3. COST vs RISK ANALYSIS
  4. Analyzing What is Reasonable 

(1)       SHOULD CONSIDER:

(a)       LIKELIHOOD OF INJURY HAPPENING 

(b)       SERIOUSNESS OF HARM IF IT DOES HAPPEN 

  1. Cost vs Benefit Analysis 

(1)       SHOULD CONSIDER: 

(a)       COST OF INFORMING OR WARNING

(b)       DIFFICULTY AND TIME INVOLVED IN INFORMING 

(c)       THE BENEFIT FROM GIVING THE WARNING 

 (d)      WHETHER METHOD OF INFORMING INVOLVES ACCEPTED PROCEDURE IN INDUSTRY 

Note: Dear Doctor letters common – Statgram used 

(e)       WHAT HARM CAUSED BY GIVING WARNING

  1. THE LIKELIHOOD OF THE HARM 
  2. THE SERIOUSNESS OF THE HARM COMPARED TO THE BENEFIT
  3. Analysis & Conclusion 

(1)       THE GREATER THE POTENTIAL HARM THE GREATER THE DUTY TO ACT

(a)       (Analogy) CYANIDE POISON PILLS IN SIX OUT OF HUNDREDS OF THOUSANDS OF BOTTLES OF SUDAFED 

(b)       IF ONLY ONE CHILD SAVED FROM SEIZURE, BRAIN INJURY OR DEATH IT’S WORTH THE TIME AND EXPENSE 

(2)       “OUNCE OF PREVENTION WORTH A POUND OF CURE” 

(3)       “BETTER TO BE SAFE THEN SORRY”

  1. DUTY TO ACT AND NOT CONCEAL
  2. PILOT OF 747 SEES FLASHING RED LIGHT: 

(1)       EXPECT HIM TO ACT IMMEDIATELY – NOT PUT TAPE OVER  LIGHT AND IGNORE?

(2)    RIGHT TO TRUST PHARMACEUTICAL COMPANIES 

  1. HAVE RIGHT TO EXPECT AND TRUST CO’S ACTING REASONABLY TO PROTECT PUBLIC FROM HARM 

(1)       PUBLIC DOESN’T INSPECT TIRES AND QUALIFICATIONS OF PILOT BEFORE FLYING – HAVE RIGHT TO TRUST PILOT & AIRPLANE COMPANY 

  1. FAULT CLAIMED 

SEE

 

  1. CLAIMS SHEET
  2. CLAIMS POSTER
  3. CONCEALMENT POSTER
  4. BOCCI TIME LINE POSTER
  5. ATTACK & DEFENSE SHEET
  6. DEPOSITION EXHIBITS
  7. POINTS:

(1)          SENT OUT 3 STATGRAMS WITHIN A WEEK AFTER PRIME TIME – NOT ONE DEAR DOCTOR LETTER

(2)          DIDN’T HAVE TO WAIT – NO FDA REQUIREMENT

(3)          PAST FACTS RE KEY MARKETING 

  1. CROSS EXAM NOTEBOOK TABS 
  2. Tab 1: DRUG MANUF. CODE OF FAIR PRACTICES
  3. Tab 2: SEE REVISED PDR RE “FOOD MAY INFLUENCE” SEE Tab 5 FOR AD – “NOT SIGNIFICANTLY AFFECTED BY”
  4. Tab 6: “LOT OF REASONS” – $35 MILLION Tab 10 memo
  5. Tab 8: FISONS
  6. Tab 9: 10/30/87 MEMO WITH ARTICLES
  7. Tab 12: NOTICE OF ADVERSE – SEE AD AFTER LETTER
  8. Tab 14: EX. 30
  9. Tab 15: McEWEN CASE
  10. Tab 16: ALLERGY ARTICLE
  11. Tab 19: FDA BURN OUT
  12. Tab 26: IF SEEING MORE THEN ONE DOCTOR
  13. Tab 27: NEW ENGLAND ARTICLE

PHYSCIAN QUESTION:

1.       IF A DRUG CO DISCOVERS IMPORTANT INFORMATION RELATING TO THE SAFETY RISKS OF A DRUG YOU ARE PRESCIBING TO PATIENTS A DO YOU EXPECT THEM TO NOTIFY YOU OF THE NEW DANGERS CLEARLY & PROMPTLY? WHY?

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