Appendix — Pfizer Inc. v. Lord

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

Judgment

UNITED STATES COURT OF APPEALS

For tHe Kicuri Cirncurr

SEPTEMBER Tern, 1971

No. 71-1580

——<>—

Prizer Inc. Americas CyaNamip Company, Brisrou-Myrrs

Company, Sours Corroration, and Tue Upsoux Com-

PANY, |

» Petitioners,

—V.— .

Honxorapite Mines W. Lorp. United States District: Judge,

3 Respond ut,

and .

STaTe oF ‘-Kanxsas and NamMep PLainrirps IN Fortry-1 Gut

Oruer Cases,

Respond nts.

On Petition for a Writ of Mandamus: to Disqualify The

Honorable, Miles W. Lord as Judge in These Cases.

This matter came on for consideration before this (Court

on a petition for writ of mandamus to disqualify the Hon-

orable Miles -W. Lord as Judge: the answers thereto:

motion of respondents for damages and costs and response

thereto, and transcripts ap l.depositions filed in the United

States District Court for the District of Minnesota.

On Consideration Whereof. it is now here ordered and

adjudged by this Court that the petition for writ of man-

damus be and is hereby denied, in accordance with per

curiam. opinion of this Court. filed herein,

And it is further ordered that the motion.of respondents

for damages and costs in this matter be and is hereby —

deni ed. 7

February 15, 1972

A true copy.

Attest: . i

Roperr C. Tucker

Clerk, U. S. Court of Appeals, Sth Cireuit.

by H. F. Grventxcrr

| Chief Deputy

~Mareh 27, 1972

Opinion Dated February 15, 1972

UNITED STATES COURT OF APPEALS

For tue Eicury Circuir

No. 71-1580

——

Prizer Inc., AMERICAN Cyanamip Company, B 3RISTOL-MYERs

CoMPpany » SQuiBB Corporation and THe Upsoun Com-

PANY,

‘De fendants-Petitioners,

. —_V.—

Honorasie Mites W. Lorp, United States District Judge,

Respondent,

and

STATE oF ‘Kansas and Namep PLAINTIFES IN Forry “Etcur

oe ; OTHER Casus,

Plainti if's-Respondents.

—{j-—__

On Petition for a Writ of Mandamus to Disqualify The

Honorable Miles WALord as Judge in These Cases.

February 15, 1972.

Before:

Marrues, Chief Judge,

Bricut and Ross, Circuit J udges.

Per Curiam.

Petitioners, Pfizer Ine., American Cyanamid Company,

Bristol-Myers Company, Squibb’ Corporation, and The

Upjohn Company, manutiacturers of drugs, bring this. ae-

tion, seeking a writ of mandamus: pfirsuant. to the All

Writs Statute, 28 U.S.C. $1651, and FRAP Rule 21 direct-

ing the ‘Hon.-: Miles W. Lord. District Judge for the Dis-

trict of\ Minnesota, to recuse himself from presiding over

the above, en cases. Before instituting this action,

petitioners» sgn September 20, 1971, filed moving papers

and affidavits pursuant to 28 U.S.C. $144, asking Judge

Lord to disqualify himself for reasons of bias and preju-

dice. Judge Lord orally denied the motion for “legal in-

sufficiency.” Although Judge Lord has declined to respond

to petitione Es’ allegations, respondents, who are plaintiffs

in the pending actions, have filed answers objecting to the

issuance of the writ. Inca separate motion, .1 respondents

seek damages and costs aflevedly suffered, by reason. of

delay to the proceedings attributable to the filing of peti-

tioners’ action.

We have care ‘fully examined the petition, the unde rlying

joint affidavit, the responses thereto, and portions of the

record pertinent to petitioners’ claims. We reach the merits

of the petition and dehy petitioners the relief requested.

We also deny respondents’ motion for damages. We do,

however, deem it appropriate to comment on certain as-

pects of this ease, :

In a separate action filed contemporaneously, petitioners

seck a writ of mandamus as a means of obtaining relief

from a discovery order issued by Judge Lord which re-

quires disclosure of certain documents and ‘papers which -

petitioners clair: 10 be covered by thé attorney-client privi-

lege. Our opinion in that controversy, No. 71-1581, and

o .

our opinion in this case are filed together).

‘

Backerounp OF THE PRESEN’ LITIGATION

The present lawsuits involve forty-nine civil antitrust

damage actions which have been brought by a number of

different. categories of plaintiffs, including the United.

States, states, wholesalers and _ retailers, insurance com-

panies, private . hospitals, agricultural purchasers, and

competitors. These actions, and approximately one lun-

dred others, most of which now have heen,’ settled, arew

out of Federal Trade Commission proeec:tines instityted

in 1958' and a criminal antitrust action

United States in 1961.%

In substance, the various complaining parties charge

that petitioners, individually and in coneart, committed

fraud on the United States Patent Office in connection with

the prosecution of the Conover patent owned] by Pfizer on

tetracycline, a broad spectrum antibiotic, and, in addition,

that they thereafter conspired to exclude competition and

fix antibiotic drug prices in violation of the:Sherman Act.

—

yrought by the

"In the matter of Ainmerican Cyanamid Company. et al., Docket

No. 7211 (complaint filed July 28, 1958), order vacated and re-

— manded, 363 F.2d 757 (6th Cir. 1966), order after remand aff'd,

sub nom.,. Chas.’ Pfizer & Co., Ine. v. Federal Trade f‘ommission,

401 F.2d 574 (6th Cir. 1968), cert. denicd, 394 U.S. 920 (1969),

*. United States v. Chas. Pfizer & Co., Inc., 61 Cr.-772 (Indictment

returned August 17, 1961), reu’d for new trial, 426 F.2d 32 (2

Cir.), prior en bane hearing order vacated, opinion of pancl modi-

fied, and “petition for rehearing denicd, 437 F.2d 957 (1970), new

trial determination aff’d:- by equally divided court, .|..U.S.... (No.

70-72, Jan. 24, 1972). ,

4 |

‘

* Ga

The pricing policies of these drug companies were the

subject of Federal Trade Cotmission investigations be-

tween 1951 and 1958 and an extensive investigation by a

Senate subcommittee, which subsequently reported its find-

ings to the full committee.*

Following the Commission proceedings, several civil anti-

trust actions were brought against some or all of the

petitioners. After the jury verdict in the criminal case,

more than one hundred similar actions were commenced.

A latge number of these cases were venued in the Southern >

District of New York. some having been commenced in

that district and others haying been transferred to that

' district for coordinated pretrial proceedings before the

_ Hon. Inzer I. Wyatt. A majority of these eases were

settled with the approval of Judge Wyatt. His opinion

approving the settlement is reported as State of West Vir.

mina XS. Chas, Pfizer & Co. 314_¥. Supp. 710 (SDNY.

1970), aff'd 440 F.2d 1079 (2a Cir. 1971).

Following the settlement of the bulk of the cases, the

Judicial Panel on Multialistrict Litigation assigned the

nonsettling cases to Judge Miles Lord, who had been

specially assigned to the Southern District of New York.*

Subsequently, over defendants’ objection, Judge Lord

transferred the majority of those cases to the District of

Minnesota for trial, pursiant to 28 U.S.C. (1404(a). This

action was approved by the Second Cireuit in Pfiser, Ine.

v. The Hon. Miles W. Lovd, 449 F.2d 12% (24 Cir. 1971).

rt Rep. No. 488, 87th Cong. Ist Sew, 1961.

‘On waking the assignment, the Judicial Panel «tated *

We are certain that Judge Miles Lord will direct discovery in

such a way that pretrial in all won-« ttling cases will proceed ex.

peditiously and efficiently and without delay qr duplication. In re:

Antibiotic Drags, 320 F. Supp. 586, 590-91 (1970).

Judge Wyatt's opinion outlines the historical back-

ground of the. prior civil, criminal, and administrative

proceedings. We relate some of this history here as back-

ground. Cyanamid, in late 1948, produced one of the first —

‘broad spectrum antibioties, chlortetraeyveline, which it sub-

sequently marketed under the traile name Aureomycin.

Cyanamid received a patent (Duggar) on chlortetracyeline

in 1949 and an improvement patent (Niedereorn) in 1950.

Tn late 1952, Pfizer claimed discovery of tetracyeline, an

antibiotic said to be highly superior in some respects to.

other-antibioties then on the market, throuch deschlorina- :

tion of chlortetracveline. Pfizer applied for a patent on -

tetracycline in late 1952; Cyanamid applied for a patent on

tetraeyeline in early 1953. Beeause of the ‘conflicting ap.

plications, the Patent Office declared an “interference.”

In two meetings held in November 1953, Piiser and Cvana-

mid entered into an agreement by which Cyanamid would

lieense Pfizer under the Duggar-and Niedereorn patents,

In addition, it was agreed that proofs of priority on

tetracyeline would be exchanged and that the party found

not to have priority would concede priofity to the other.

The party receiving the patent on tetracycline would then

‘lieense the othe?. Thereafter, on the exchange of evidence

as.to priority, Cyanamid conceded in February of 1954

that Pfizer's jiatent (Conover) represented the first dis.

covery of tetracycline. The patent was ixened to Pfizer in

January 1955.

Commencing in 1954, Bristol began producing tetracy-

cline and selling it in bulk to Squibb and Upjohn. Bristol.

Squibb, and Upjohn: sned Pfizer for a declaratory judg-

ment invalidating the patent. The parties reached a x«ettle.

ment whereby licenses wnder the patent were granted by

Pfizer to Bristol, Squibb, and Up}

. Sa

In 1958 the Federal Trade Commission, after extensive

investigation, issued a complaint against the five drug com-

" panies, alleging that Pfizer had secured ‘its patent on

tetraeyeline by conspiracy and fraud, and that all of the

drug companies were guilty of withholding material in-

formation from the Patent Offce and were guiltv of mo-

nopolistie practices in the production and sale oz broad

spectrum antihiotie drugs. This aspect of the litigation

ended in 1969 without a conélusive finding of guilt, exeept

as to misconduct of Pfizer and Cyanamid before the Patent

Office. See discussion in Sfute of West Virginia v. Chas.

Pfizer & Co., supra, 314 F. Supp. at 715-18. |

- After reviewing the prior proceedings, Judge Wyatt

observed: ra

After two exhanstive and Jenzihy investications by

two agencies of the government, there are no findings

of any misconduct bx any of the defendants which

would show, even prima facie, a violation of the anti-

. trust laws. The only findings of misconduct are those

by the Commission that Pfizer and ( ‘yanamid each in

substance committed a fraud on the Patent Offiee ; the

' Commission, however, found that no conspiracy in

this respect between Pfizer- and Cyanamid had been

proved before the Patent Office, our Court of Appeals

has said that this is relevant to the issue of violation

of the antitrust laws ‘only insofar as the acts of Pfizer

and Cyanamid supported an inference that at the

November 1953 meetings they had entered into agree.

ments to fix priees or to exelnde others’.

> > —

Thus, in the Commission proceedings there are no

findings of any misconduct by three of the defen.

dants—Bristol, Squibb and Upjohn. As to the other

two defendants, Pfizer and Cyanamid, the only finding

of misconduct has to do with patent prosecutions in

the Patent Office. Aside from serious questions of law .

about the effect of this misconduct, it would not itself

constitute any violation of the antitrust laws; at bes*, -

it might arguably be some evidence of an attempt to

monopolize. [314 F. Supp. at 741-42]. Sey

Judge Wyatt noted that the reversal of the criminal anti-

trust convictions against Cyanamid, Pfizer, and Bristol

_ “leaves the criminal proceeding without substantial effect

at this point.” Jd. at 742.°

The pénding actions. reiterate ‘the charges made in the

prior administrative and judicial proceedings that the de-

‘fendants conspired to restrain interstate commerce in

the manufaeture, sale, and distribution of tetracycline and

other broad spectrum antibiotic products and also con..

spired to monopolize the manufacture. sale, and distribu-

tion of those products.

Il.

Tue Presext Prerrriox

In the instant proceedings, petitioners assert that Judge

Lord, through his actions. statements, and conduct. has

demonstrated personal bias and: prejudice by the follow-

ing: .

* The Supreme Court's recent affirmance of the Second Circuit's

reversal of the criminal conviction. United States v. Chas. Pfizer &

Co., Ine, ...US.... (No. 70-72. Jan. 24, 1972), has preserved the

aptness of Judge Wyatt's comment upon the lack of finality of the

10a

(1) taking aggressive action to attempt to dissuade

the United States Department of Justice from settling

its civil action against the defendants in an effert to.

assist the other plaintiffs;

(2) suggesting that the United States Government,

if it were to settle its civil action, would be permitting

the defendants to “buy a monopoly”;

(3) declaring that: “We may have another pro-

ceeding, or, sit least some moves” agaihst defendants

to vindicate the integrity of the United States Patent

Office and courts for fraud on. those tribunals ;

(4) urging the Department of Justice to investi-

gate the Patent Office, which he characterized as “the

sickest institution that our Government has ever in-

vented” and “the weakest link in the competitive sys-

tem in America”; :

(5) refusing, without a hearing, to consider a settle-

ment of the treble damage class actions at a dollar

amount previously approved in these cases by another

district court and the Court of Appeals for the Second

Circuit, which caused one damage plaintiff to with-

draw its agreement to settle for that dollar amount;

(6) soliciting law suits against defendants by urging

a private attorney to find some hospital patients to

form a new class of plaintiffs;

(7) interrogating a deposition witness in an aggres-

sive and angry manner, in an attempt to intimidate

the witness and to influence his testimony along lines

desired by plaintiffs, suggesting openly that the wit-

ness was evasive and lying, and threatening to levy a

fine; and .

lla

(8) accusing counsel for one of the petitioners of

‘instructing his client to “manufacture” or “doctor”

evidence.

ITT.

Manpamus as a Remepy ix Recusa Cases

We turn our consideration to a determination whether

mandamus may be utilized by the petitioners at this stage

' of the proceedings to review Judge Lord’s determination —

not to disqualify himself. Although the authorities are

not uniform, a substantial body of law supports the propo-. -

_ ‘sition that mandamus to a United States Court of Appeals

will lie when a district judge has rejected affidavits scek-

ing his recusal as “legally insufficient.” Compare (man-

damus appropriate): Will y, United States, 389 U.S. 90

(1967): Pfizer, gy. v. Lord, 449 F.2d 119 (2d Cir. 1971);

Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968): Rosen

v. Sugarman, 357 F.2d 794 (2d Cir. 1966): In re Union

Leader Corp., 292 F.2d 381 (1st Cir.), cert. denied, 365 -

U.S. 833 (1961); United States v. Ritter, 273 F.2d 20 (10th

Cir. 1959); Minnesota d Ontario Paper Co. v. Molyneaur,

70 F.2d 545 (8th Cir. 1934); with (mandamus inappro-

priate): Albert y. United States District Court, 283 F 2d

61 (6th Cir. 1960), cert. denied, 365 U.S. 2°8 (1961): Green

v. Murphy, 259 F.2d 591 (3d Cir. 1958): Korer vy. Hoffman,

212 F.2d 211 (7th Cir. 1954). Judge Aldrich in In re Union

Leader Corp., supra, noted:

From the general standpoint of ‘the interest of -jus-

tice,’ the right to be tried before an unbiased judge

is also basie in our judicial system. Although there

are differences of opinion, we agree .. . that public -

12a

confidence in the courts may require that such a‘ ques-

tion be disposed of at the earliest opportunity ... .

This need not commit us to entertaining every re-

jected affidavit of prejudice; nor need we presently _

set forth the limits. It is to be borne in mind that’

mandamus is a discretionary writ. [292 F.2d at 384].

We think it noteworthy that the United States; as a

respondent in these proceedings, suggests that mandamus

is an appropriate remedy “given the complexity, number

and probable duration of the cases involved”* and that

“rather than leave such a serious charge unresolved

throughout this lengthy litigation -.. the writ may prop-

erly be used here to review Judge Lord’s denial of peti-

tioner|s*"| motion.” | | . ;

_ Accordingly, we believe that. mandamus is’ an appro-

priate vehicle to review Judge Lord’s refusal to recuse

* himself.

IV.

Tue Stranparv ror RecusaL

Before turning to detailed examination of the claims

made by the petitioners, we review the legal principles

which govern the determination of this case. The applica-

ble substantive law is contained in 28 U.S.C. $144, which

reads:

Whenever a party-to any proceeding in a district

court makes and files a timely and sufficient affidavit

that the judge before whom the matter is pending has

“Judge Lord himself has characterized this case as “practically

the biggest single assignment ever taken on by a judge anywhere

in the history of jurisprudence of any kind.” —

13a

a personal bias or prejudice either against him or in

favor of-any adverse party, such judge shall proceed

no further therein, but another judge shall be assigned

to hear such proceeding. mod

The affidavit shall state the facts and the reasons

for the beliéf that bias or prejudice exists, and shall

be filed not less than ten days before the beginning of

the term at which the proceeding is to be heard, or

good: cause shall be shown for failure to file it within ©

such time. A party may file only one such affidavit .in-

any case. It*shall be accompanied by a certificate of

counsel of record stating that it is made in good faith.

The Supreme Court, in. Berger v. United States, 255

U.S. 22 (1921), construed a predecessor statute to mean |

that, although the challenged judge may not pass upon

the truth of the facts alleged in the affidavit, he may decide

whether the affidavit meets the procedural requirements

of the statute and whether the facts alleged give fair sup-

port to the charge of bias and prejudice. By retaining the

basic provisions of this earlier statute in the present (144, . -

Congress apparently acquiesced in the procedure whereby

a challenged judge may initially pass upon the legal suf-

* ficiency of the affidavit. See, Note, Disqualification of

Judges, 79 Harv. L. Rev. 1435, 1438-39 (1966); Schwartz,

Disqualification for Bias in the Federal District Courts,

11 U. Pitt. L. Rev. 415, 423 ( 1950). Petitioners have raised

no question concerning the procedure followed by Judge

Lord in passing upon the legal sufficiency of the affidavit.

The statutory concept of “personal bias or prejudice” -

‘was explained by the Supreme Court in United States v.

Grinnell Corp., 384 U.S. 563 (1966) -

l4a

The alleged bias and prejudice to be disqualifying

must stem from an extrajudicial source and result in

an opinion on the merits on some basis other than -

what the judge learned from his participation in the -

ease. [384 U.S. at 583] )

In deciding whether petitioners’ affidavits demonstrate

this personal bias or prejudice, we accept the ‘truth of the

facts recited therein: We determine the validity of peti-

tioners’ conclusion of bias by examining the cited facts

against the record presented to us. ‘

Earty Ixcipents

The claim of bias and prejudice against Judge Lord ap-

pears to rest primarily on incidents which oceurred in late’

August and early regonneng | 1971, although petitioners

refer to Judge Lord’s conduct and statements on earlier

occasions as reflecting personal bias and prejidice, *These

early incidents provide a backgreund against which the

later remarks and comments of Judge Lord can be evalu-

ated. We examine Judge Lord's comments chronologically

but focus on the later comments.

The joint affidavit, in part, states:

We have set forth in this joint affidavit specific inei-

dents which we believe manifest Judge Lord’s bias

and prejudice. In substance these incidents show that

Judge Lord has improperly assumed the role of prose-

eutor and advocate against defendants and has. in-

creasingly become more aggressive and open in this

role....

vy.

15a

Each affiant submits his affidavit with extreme per-

sonal reluctance. We do not assert that J udge. Lord’s

prejudice is necessarily a deliberate or -a conscious.

one.... -

While from the beginning there were indications and ~

hints ‘of Judge Lord’s personal prejudice against and

hostility toward defendants, none of these defendants

believed that it was proper to take the serious step

of making an application to recuse on these incidents

alone. Defendants hoped that Judge Lord’s appear-

ance of bias and his proseéutorial attitude were illu-

sory... | |

The extent of Judge Lord’s prejudice and bias re-

cently became clear as plaintiffs began taking deposi-

tions ... of Harvey W. Edelblute. 2 patent attorney

formerly employed by American Cyanamid Company,

who, during the 1948-55 period, prosecuted Cyanamid’s

Aureomyecin and tetracycline patent applications and -

was a participant in events leading to the patent

aspects of this litigation... .

(a)

At the request of the respondents, Judge Lord attended

. the first six days of Mr. Edelblute’s ‘deposition. Although

there is some evidence that petitioners would have pre-

ferred that Judge Lord not be present, we feel that his

presence is not critical.’

Petitioners claim Judge Lord manifested a biased state

of mind while attending this deposition. We have reviewed

this contention against a transcript of over one thousand

pages in length and tape recordings of a portion of the

-728 U.S.C. §1407(b) - specifically contemplates the appointment

of judges to preside at depositions in-multi-district litigations.

l6a | ,

; deposition. We conclude from reading the transeript and

listening to the tapes that muelr of- the difficulty was caused

by the compound questions asked by the attorney for the

United States who interrogated -delblute. Additionally,

we note that Edelblute did not always respond directly

to the questions asked, even when they were asked in a

clear-cut manner. .

The petitioners’ affidavit cites séveral comments made

during the deposition as proot of Judge Lord’s bia 1s

;

The Court: I. will tell vou one thine: At some

. “a ‘

— point this“witness is going to get pinned down and

answer direct questions. He is a lawyer. He is a wit-

ness. Ile is under oath. Mysobservation here, which

I don’t p: spose to incorporate into anything that goes

before the jury, that he is acting in a very devious

manner.

Later the judge threatened the witness: ;

The Court: Now, that’s not an answer to the ques-

tion, and yau are going to have to straighten out and

fly right or the Court is going to imposv a little fine on

you. . , . .

Mr. SS. uniey [Counsel for Cyanamid]: Well,

Your Honor, | am going to except to that.

The Court: You may except to it, and vou may ap-

peal from it. If he doesn't start answering questions,

he is going to sigrt vetting fines for it.

We note that a later statement reflects an apparent change

in Judge Lord’s attitude toward the witness:

The Court: You don't have-to worry about the ease

if the man is answering questions directly. He has

done very much better since we had our chat. \

17a

Although we consider some of the cited comments to be

inappropriate, perhaps even unfair to the witness, we can-

not say ‘that they demonstrate any particular personal

prejudice against petitioners. . .

Petitioners additionally allege that Judge Lord ques-

tioned Mdelblute in an “inquisitorial” manner, The com-.

ments below’ demonstrate. that the witness, who was a

trained lawyer, found no objection to Judge Lord’s ocea-

sional questions.

The Court: All right. Now, Tam sorry to interrupt,

but sometimes a person will respond a little more

directly to. the Judge than to a law yer and T am rather.

pleased with his answers at this point. Go ahead.

The Witness: If T may say so, sir, your questions

are a-hell of a lot clearer than those being asked hy

Mr. Owens [Counsel for respondent United . States].

This court has approved of a presiding judge question-

ing a witness in order to clarify facts and issues:

The trial judge in a federal court is not a mere

presiding officer. It is his function -to conduyt the trial

in an orderly way with a view to eliciting) the truth,.

and to attaining - Justice between the partied. It is his

‘ duty to see that the issues are not obscured, that the

trial is conducted in a proper manner, and that the

testimony is not misunderstood by the jury, to_check

counsel in any effort to obtain an undue adyanti ize or

to distort the evidence, and to curtail an umbecessarily

‘long and tedious or iterative examination; or cross-

examination of witnesses. He has the authority to

interrogate witnesses, and to express his opinion upon

the weight of the evidénce and the eredibility of the

. .

18a *.

witnesses. Fidelity & Deposit Co. of Maryland vy.

Bates, 76 F.2d 160, 170 (Sth Cir. 1935).

We see no reason why such power need be restri¢ted to

the actual trial. We think that a trial judge may comment

ant] inquire during the course of pretrial proceedings so

long as he does so in a nonprejudicial manner.

After reviewing the transcript and tapes of the Ealel-

blute deposition, we are not impressed with the petitioners’

claims that Judge Lond demonstrated personal bias and

prejudice through his comments at the deposition, or by

his interrogation, of Edelblute. To the extent Judge Lord's

remarks can be construed to impugn Exdlelldute’s veracity,

“they would seem to be prematurely made during pretrial

proceedings and therefore unfair, but the remarks fail to

reflect any personal bias or prejudice. This type of

prejudgment, although unfortunate, cannot serve ax a basis |

for recusing Judge Lord. * |

(b)

Petitioners also charge that Judge Lord arbitrarily re |

jected a proposal from State of Hawaii that it settle

its action under the so-called “Alabama plan,” a formula

which had been judicially approved by Judge Wyatt.”

Petitioners assert that the\State of Hawaii withdrew a

settlement proposal made to petitioners -after Judge Lord

informed their attorney hy telephone that the court would

refuse to approve this sett t or any settlement at

the “ Alabama plan™ level. In a letter to all parties dated

* The Matra plan pone (or Misetlen _ apportionment

among all tiffs of the sum offered b> petitioners to settle all

- elaims d the time Judge Wyatt supervised this consolidated

—tittvation. The plan is explained at 314°F. Supp. 726-90,

May 14, 1971, Judge Lord confirined this telephone con-

versation and related that it would be “awkward” for him

to approve the settlement on the basis of the meager in-

formation then known to him. The letter also stated that -

the adoption of Judge Wyatt's settlement plan would

involve “an evaluation of plaintiff<’ proxpects” which the

court was not prepared to make at that time. _

Petitioners constrve Judge Lord's comments as an un-

warranted brushoff of a setilement proposal. reflecting

bias. We note, however, that Judge Lord stated in the

letter that his rejection of the proposed settlement would

be “without prejudice to renewing the request ‘at a later

time.” In the light of the meager information available

on this issue, petitioners cannot prevail. We view with

deep concern, however, any conduct or comments hy the

trial court whieh may hamper a fair settlement of any

of the snits, We ‘lisenss the ayes fully in part NI

of this opinion, *

te)

‘Petitioners also charge Judge Lont with soliciting law:

suits against them. The joint afiidayi it relates :

* At the pretrial conference of March Gth, while reeo-

nizing that it ‘isn’t the kind of a thing to spread on

the record” he [Judge Lond) “urged.” “invited” and

“drafted” a private altorney to go out and find some

hospital patients to form a class which none of the

. litigating plaintiffs had vet sought to represent.

Respondent ~ dispute the accuracy of petitioners’ recollec-

tion of Judge Lord's statements. Furthermore. rexpon-

dents point out that Judge Lor! was concerned with the

adequate representation ef hospital patients as a consumer

class. After consideration of all aspects of the claims of

hoxpital patients, Judge Lord directed that they be dis-

—“tnissed. “We have considered this comment and other

similar comments referred to in petitioners’ affidavit. In

the licht of the record, we rejeet the contention that such

remarks, indivielnally or collectively, manife<t personal

bias against petitioners.

Tue Prockem ses or Serrempen 8, 1971

. With this backzrounl, we now proceed to a considera-

tion of a conference between court and counsel on Septem.

ber 8, 1971, which Judge ' ord called in order to consider

the “court's role” relating te the “publie interest aspects”

of a proposed settlement between petitioners and the

United States. We deem Judge Lord's comments at this -

conference critical to our evatuation of the sufficiency of

petitioners’ charges.

Petitioners’ affidavit asserts that during this conference

Jwige Lord displayed bias and prejudice (1) in agcres-

sively attempting to dissuade the United States Depart-

ment of Justice from consummating any settlement, thereby

imlicating an intent to assist the plaintiffs in the proseeu-

tion of their lawsuit<; (2) in improperly implying that

Exlelblute had given false testimony. at the discovery

deposition; (3) in issuing, «ua sponte, an order to show

cause why certain competitor cases not then venued in

- Minnesota should not be transferred to that distriet for

trial; and (4) in expressing great distrust for the United

States Patent Offiee, thus demonstrating that he lacked the

2la

impartiality to determine fairly whether or not petitioners

had committed fraud upon the Patent Office in obtaining

the Pfizer patent on tetracycline. ;

In evaluating these charges, we have examined the tran-

seript of this conference. Portions of the Edelblute deposi-

tion also bear tipon these issues. During the course of that

deposition, Judge Lord advised the parties that he had

personally ealled Assistant Attorney-General MeLaren, in

charge of antitrust matters for the Department of Justice,

and had indieated special interest in the possible settle.

ment of the government's action in Count I of its com-

plaint whien seeks cancellation of ‘the Pfizer patent on

- Im response to this request, Lewis Bernstein, Chief of

the Special Litigation Section of the Antitrust Division,

appeared before Judge Lord on Septem!.c? 8 1971. and

orally advised the court and ititerested counsel that the

United States and the petitioners had reached a tentative

agreement™ te settle Counts Hand THI of the sovernment’s

complaint, and that to consummate the settlement, the

fovernment contemplated dismissing Count 1, which secks

cancellation of Pfizer's tetracycline patent for fraud. Ac-_

cording to Mr. Bernstein, the proposed settlement pro-

vided that this patent would be dedicated to the publie,

rather than cancelled as f randulently procured. Mr. Bern-

* Judge Lord sid:

I believe T made a record of the fact that I previously had

talked to Mr. McClaren on the phone and suggested to him that

Count Ne. I was so fraught with public interest and that the

very integrity of the court system seemed at stake assuming

prima facie that the allegations are established and the courts

of this nation have been imposed upon, and for that reason I

wanted te confer with him before he made any settlement... .

"The tentative agreement provided that Counts Il and Ill

would be settled for approximately fourteen million dollars.

‘e

22a

stein also stated that, since the other plaintiffs had relied

upon the Department of Justice in developing the patent

aspects of the litigation, the government would make avail-

able to plaintiffs all information it had gathered on that

issue.

In response, Judge Lord expressed concern whether the

publie interest would be served by the dismissal of Count

I and also expressed his displeasure at having his “game

plan” upset by the settlement :

| don’t believe in making speeches for the record

that do not truly reflect my feelings on the subject. |

deliberately combined the states cases with the bed--

eral case on the theory that it might save us a mul-

tiplicity of trials. 1 was fully aware: of the fact that

Count 1 in equity was to be tried by the Court and

we could try it with reasonable dispatch. For that

very reason I sat in on Mr. Edelblute’s, or a great

portion of Mr. Edelbluf’s deposition testimony so

that I could get some gauge of credibility, to kind of

place the case and get the feel of it and see what it

was that Mr. Owens was driving at.

All of these things have gone by the boards if you

settle this case. You not only in effect give the ‘plain-

tiffs an added burden of trying your case, but you

upset the “game plan” which the Court, after a good

deal of consideration and deliberation set as a means

of disposing not only of the cases with which | was

combined, but all of these cases in one proceeding.

Judge Lord added:

This, as you know, Mr. Bernstein, Img_got to he

practically the biggest single assignment ever taken

» *

23a

on by a judge anywhere in the history of jurispru-

dence of any kind. So, if I have been guilty of trying

to figure out a way where | could get at the key issues

and dispose of them, I plead guilty to that. It stings’

ome just a little bit when the rug is pulled out from

under me and I now face considerable more work to

get rid of this mountainous litigation. I am just

human enough so that I feel very badly about. my

friends who are defending this case when I haye to

lean this way and indicate to them that T would find

a shorter way of resolving it that might not work to

their advantage because I know they would ‘want a

jury to do it rather than have me do it. But i would

do what the law provides in that regard. / * ~

Petitioners also take umbrage at Judze Lord’s eom-

. ments upon Edelblute’s testimony at the September Sth

proceedings. Judge Lord stated:

. However, I am not unmindful ‘of the fact that

fraud on the Patent Office i is here alleged and ‘that for

about seven days Mr. Harvey Edelblute sat on the

witness stand and with all of the power at his disposal

as a consultant and employee of the defendant corpora-

a tion Cyanamid, he alleged that nothing which he did -

or said constituted fraud despite the holding of the

FTC and the grand jury.

“Finally, pare the exchange with Mr. Bernstein, Judge

Lord turned his attention to a possible relationship he-

tween the United States Attorney General and the Patent

Office, suggesting :

I think you ought to tell your Attorney ry if

he wants to look at something, he ought. to* look at

24a

that Patent Office. That has got to be the sickest in-

stitution that our Government has ever invented. It

is just, as far as I can see, an attritional war between

the patent applicant and the patent examiners, who

apparently get paid on the piece work for how many

patents they could put out. And you can examine for

months some poor fellows that are out doing business

_ and finally arrive at a price structure, and you might

get an antitrust suit. But if you want to look, go back

avd look in your Patent Office and see what is happen-

ing to tle Patent Office. | say that for the record and —

for posterity. That has got to be the weakest link in

the competitive system in America.

The record uianifests Judge Lord's obvious perturbation

over the contemplated settlement. His words were strong. —

Yet his ire seems directed not at petitioners but at the

government, which, according to Judge Lord, might be

_ selling out the publie interest. :

We-think it clear that Judge Lord misconceived his role

vis-a-vis the settlement. Petitioners assert that a district

judge lacks the power to approve or disapprove any ‘pro-

‘posed settlement between the government and the defen-

dants. See Confiscation Cases, 7 Went 454 (1868) ; Ex Parte.

American Steel Barrel Co., 20 USS. 35 (1913). We have

been shown no authority to the contrary. - 3

We note, however, that the court’s remarks concerning

the publie interest in the setthment of Count | rested

upon Judge Lord's assumption, frequently stated im the

record, that the government prove the truth of its allega-

tions. Moreover, Judge Lerd’s concern over the upsetting

of hix “game plan” in managing the litigation may have

25a .

_ been better left unsaid, but that statement does not mani-

fest any personal bias and prejudice toward petitioners.

We find Judge Lord’s remarks suggesting that the |

Attorney General ought to look at the Patent Office, “the

Sickest institution . . . ever invented,” to be totally in-

judicious. These words should not have been spoken, and

we wholly disapprove of them. Nevertheless, even if we

accept petitioners’ arguments that these comments disclose

a prejudicial attitude concerning the relationship between

petitioners and the Patent Office, these observations may

have come as a result of Judge Lord’s exposure to the

prior proceedings and the facts disclosed during the pre-

trial proceedings. Thus, although J udge Lord’s comments

were gratuitous and wholly extraneous to the question

then before him, we cannot say that they reflect an “extra-

judicial bias” as is required for recusal under Grinnell,

supra.

Because Judge Lord's conduct and &omments may have

_ discouraged settlements between the parties, we add a

word. of admonition ‘to the litigants and to the District

Judge. This complex and difficult litigation places\unusual

burdens upon an already overburdened baad court

System and upon the very busy District Court for the

District of Minnesota. Respondents have described the

task of Judge Wyatt, who preceded Judge: Lord in the

,\Dhandlitig of these eases, as “awesome.” The: Seeong Cif-

cuit has referred to the. “sizeable judicial resources”

already consumed by this litigation. Pfizer Inc., ¥. Lord,

supra, 449 F.2d 119, 121. |

_ This court is well aware that Judge Lord has expended

great energy over many months in the management of

these cases and in his effort to complete pretrial discovery,

Yet, after all of this, months of trial may still lie ahead

26a

and years may elapse before all the threads of this litiga-

tion are unraveled. The incidents giving rise to these law-

suits occurred almost twenty years ago. We think there is

much to be said in the public interest for the parties

arriving at an amicable settlement without interference by

the court. We think those parties to this litigation who

may seek fair settlement deserve the approbation of the

courts. | 7

In reviewing the explanation given by Mr. Bernstein

* relating to the proposed settleisent between the United

States and petitioners, we particularly note that the pro-

posed settlement requires the dedication of the patent to

the public, and that, notwithstanding any settlement, gov-

ernment attorneys will make available to the other plain-

tiffs pertinent data relative to the claim of patent fraud.

While other plaintiffs may preser that the covernment

continue its participation in this lawsuit, they may not

demand it. We think it appropriate to state our view that

we believe fair settlement of any of the plaintiffs’ claims,

ineluding the claims of the United States, will likely pro-

mote the overall publie interest. Conversely, any action

of Judge Lord which discourages fair settlement’ will con-

travene the public interest.

In holding Judge Lord’s actions to this point concerning

the proposed settlements, to be nonprejudicial, we are

mindful that Judge Lord needed adequate time to famil-

iarize himself with the case before encouraging the parties

actively to seek settlement. We trust that he possesses

the requisite knowledge and information at this time to

pass promptly upon settlement proposals that may be

submitted to him for approval. The policy of the law

, encourages compromise to avoid the uncertainties of: the

27a

outcome of litigation as well as the avoidance of wasteful

litigation and expense incident thereto. In light of - the

record presented to us, we think it appropriate to direct

Judge ora not to impede any fair settlement of any of

the cases presently before him. This direction applies "both

to the sovernment’s proposed settlement and to any settle-

ment reached by petitioners and any of the other plaintiffs.

We think it advisable for the benefit of the District

Court and counsel to repeat here Judge Wyatt's analysis

of: factors to be considered in evaluating any settlement,

an analysis approved by the Second Cireuit:.

Whether to approve the compromise involves an

exercise of dis¢retion. The Court is -responsible for

the protection of the many class members whose in-

terests are involved but who do not appear in the

action. Approval should be given if the settlement

offered is fair, reasonable, and adequate. These terms

are general and cannot be measured scientifically.

The most important factor is the strength of the

case for plaintiffs on the merits, balanced against the

amount offered in settlement. This factor is some-

times referred to as the likelihood of success. The

Supreme Court directs the judge to reach “an intel-

ligent and objective opinion of the probabilities of

ultimate suecess should the claim be litigated” and

to “form an edueated estimate of the complexity,

expense, and likely duration of such litigation, * * *

and all other facts relevant to a full

_ Ment of the wisdom of the proposed compromise”.

The Supreme Court then emphasizes: “Basie te this

process in every -instanee, of course,

is the need to ©

compare the terms of the compromise with the likely

‘28a

rewards of litigation. ” The quotations are from Pro-

tective Committee for Independent Stockholders of”.

“TMT Trailer Ferry, Ine. v. Anderson, 390 U.S. 414,

424-495, 88 S. Ct. 1157, 20 L.Rd.2d 1 (1968)... [440

F.2d at 1085 quoting 314 F. Supp. 740-41]

Vil.

ConcLUSIONS

We have reviewed Judge Lord’s comments and his

actions and have evaluated them against circumstances

disclosed in cases in which appellate courts have foreed a

judge to recuse himself or reversed a judgment because

of demonstrated bias. In Berger \ . United States, 255

U.S. 22 (1921), the affidavit was held to be sufficient be-

cause of the openly espoused anti-German animus of the

trial judge. Cf. Tumey v. Ohio, 273 U.S. 510 (1927). in

United States v. Hatahley, 257 F.2d 920 (10th Cir.), cert.

denied, 358 U.S. 899 (1858), the trial judge was openly

biased in favor of the plaintiff Indians and “[a] public -

appeal in-behalf of the plaintiffs was made for funds and —

supplies to be cleared through the Judge’s chambers.”

Id. at 926. See also, e.g., Peacock Records, Tne. v. Checker

Records, Inc. 430 F.2d 85 (7th Cir. 1970); Knapp v.

Kinsey, 232 F.2d 458 (6th Cir. 1956): Whitaker v. MeLean,

118 F.2d 596 (D.C. Cir. 1941). The facts contained in

petitioners’ affidavit fall short of showing the bias and

prejudice needed to recuse.

We recognize that advocates construe statements of a

trial jydge in a somewhat partisan light and thus magnify

the impact of any comment of the oomre, whether it be

8 oe ee

290

favorable or critical." A trial judge, unless he carefully

weights his pretrial comments, may very well leave the

impression that he has improperly prejudged the case, a

situation which seems to haye occurred here. It is important

that the litigant not only actually receive justice, but that

he believe that he has received justice. A judge, like

Caesar’s wife, should be above suspicion,

Finally, we must consider respondents’ motion for dam-

ages. We initially observe that this is a close case. We

are convincéd of petitioners’ sincerity and good faith in

filing their affdavits even though we have ruled adversely

to their contentions. Clearly, some of Judge Lord’s, re--

marks have unnecessarily shaken petitioners’ confidence

in his impartiality. Accordingly, we deny respondents’

motion for damages and eosts. | |

Although we deny the petition for recusal, we add a

caveat. This record adversely reflects upon Judge Lord’s

conduct during the pretrial proceedings. ‘Reluctantly, we

have pointed out his shortcomings in this ease. We de-

mand of Judge Lord, as we do of every trial judge in this -

circuit, a high standard of judicial performance with par-

ticular emphasis upon conducting litigation with serupu-

lous fairness. and-mpartiality. We commend to Judge

Lord the Soeratie definition of the four qualities required

of every judge: to hear courteously: to answer wisely: to.

consider soherly ; and to decide impartially. :

These Gases will continue under Judge Lord’s aegis. .

We expect him to provide an impartial forum in compliance

™ Petitioners’ assertion that Jude Lord has unjustifiably at-

tacked the integrity of defense counsel falls into this category. The

remark attributed to Judge Lord that “it would not bother me to

find that lawyers were part of the conspiracy” does not directly east

any aspersions upon defense counsels’ integrity, but we recognize

that this eryptie remark might he so interpreted.

with his judicial obligation. If petitioners? fears, that they”

will not be afforded a fair trial should proye justified, they

are not left without-an appropriate renfedy. See, e.g.,

Rosen v. Sugarman, supra, 357 F.2d at 798; In re Union -

Leader Corp., supra, 292 F.2d at 3589.

- Petition denied, The parties shall bear their réspective

costs. oo

A true ¢ py.

Attest: eee z

Clerk, U. S. Court of Appeals, Eighth Circuit.

3la

| UNITED STATES DISTRICT COURT

| DISTRICT OF MINNESOTA

| rw-ne COORDINATED PRETRIAL _ and

"4-68

| PROCEEDINGS IN ANTIBIOTIC -

: 4-6

| ANTITRUST ACTIONS

| UNITED STATES DISTRICT COURT

| SOUTHERN DISTRICT OF NEW YORK

LIN RE COORDINATED PRETRIAL _ 27d

PROCEEDINGS IN ANTIBIOTIC ©

“ANTITRUST ACTIONS —

4-7]

the following | actions:

Civ.409

Civ.411

Civ.458

Civ.

Civ.410

Civ.6

Civ .392

Civ.393

Civ.394

Civ.395

Civ.396

‘Civ.397

Civ.398

Civ.399

; Civ.400

Civ.401 -

Civ.402

-M-19-

75-

Civ.

4-71

$471

4-71

b-71

4-71

W-71

u-71

4-71

93A

435

Civ.403

Civ.404

Civ.405

Civ.406

Civ.407

Civ.408

Civ.409

Civ.410

Civ.411

Civ.412

Civ.413

Civ..414

‘Civ.415

Civ.416

Civ.417

Civ.418

Civ.419

W721

&-71

4-7)

4=7]

4-71

4-7)

4-7]

4-71

4-7)

the following actions:

Civ.

DEFENDANTS’ JOINT MOTION

‘AND APPLICATION

1000

180

8091

1605

1315

4235

877

| Bristol-Myers Company, Squibb Beech- Nut,

Civ. 420

Civ.421

Civ.422

Civ .423

Civ.424

Civ.425

Civ.426

Civ.427.

Civ.428

Civ.429

Civ.430

Civ.431

Civ.432

Civ.433

Civ. 434:

‘Defendants, Pfizer Inc., American Cyanamid Company,

- and The Upjohn

| Company: hereby move and apply that the Honcrable Miles W. Lord

| proceed no further and recuse himself as judge in all of these

ieee on the eon that he bears such,bias and prejudice ”

| > d2a

against defendants as wtli substantially prejudice defendants!

i rights to a fair trial.- This Joint application and motion for

disqualification is pursuant to and based upon the Fifth Amena-—

ment to tne Constitution of the United States and 28 U.S.C. Sec.

144, the record -of all prior progeedings “bad in these actions,

the annexed affidavits of kdmund mrhte, Jr., Executive Vice

. President of Prizer Inc., Harold B.‘Gross,? Secretary and Genera!

Counsel of American Cyanamid Company, Frank A.-Sprole, Vice

President and head of the Leees piviston.of Bristel-Myers

Company, Ross Reid, Vice pueatesnt aee cenacsY Cacmnus at Squibt

Beech-Nut, Ihe.,-Cerard Thomas, Vice President, Secretary and

General Counsel of- The Upjohn Company., the annexed Joint affidavit

of counsel, and the defendants’ Joint Memorandum submitted here-

with.

Dgted: “September 17, 19%). eee:

ty ben GILSON, DUNN & CRUTCHER

Uf Counsel ;

Jonn W. Thomas eS

Legal Livision ~--.

Pfizer Inc.

235 bast -4end street

New York, New York 10017

Los Angelesf Cayifornia

and

. MAUN, HAZEL, GREEN, HAYES, |

ae SIMON & ARETZ

- S/ LAWRENCE HAYES °

332 Hamm Building

St. Paul, Minnesota

re By

Attorneys for Prizer inc.

"DORSEY, MARQUART, WINDHORST,

WEST & HALLADAY en

; io \\ --

" By Xx \ : Pia te ee

' ~?400 First National Ban

building

Minneapolis, Minnesota

33a

and

DONO

1 LEISURE NEWTON

& IPVINE

| ( WMhuaqly . i

Two Wall Stree; 2 ine

New York, New York #

Attorneys for #meri. -+;; Cyanam d

Company ee

PREG

RE & BENSON

JOHN D. FRENCH :

ties a er —eceenincneennaeieastis

Northwestern Bank Bulldine

; “inneapolis, Minnesota

“4

Attorneys fér Bristol-Myers

Company, Squibb Ree

Inc.

ch-Nut,

and Thé Upjohn Company

gi; pate

By fie c

)

Forty Wall Street

New York, New York

WINTHROP, STIMSON, PUINAM % RORERTS

Attorneys for Bristol-“yvers

_ Company

CRAVATH, SWAIN & MOORE

One Chase Manhattan Plaz

New York, New York

Attorneys for Squibb

Ine. a

COVINGTOR -& BURLING.

; «

Way { : .. ( .

w Lal fy

ae xt gy | = —

oixteenth “treet” vw.

Shinrton, D.c.

é=torneys for The Mp jonn

COUNSEL FOR ALL

PLAINTIFFS:

Company

-- tee

—

35a

"| UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

“te yal ee nh a AL LS Ae See eee S .

IN RE COORDINATED PRETRIAL © . : . 4-71 Civ. 435

PROCEEDINGS IN ANTIBIOTIC. ALL ACTIONS

| ANTITRUST ACTIONS |

ia Pin Sa cai ee a” tame ne eae, ae ees ce ae ak a me ds ve

UNITED STATES DISTRICT COORT ™

SOUTHERN DISTRICT OF NEW YORK | te ty . :

ot ae SS ee ne a a we eS ee me ee

IN RE COORDINATED PRETRIAL M-19-93A -

PROCEEDINGS IN ANTIBIOTIC ALL actions

ANTITRUST ACTIONS. = ite

poten tla ae Serene Cee An aa. x

- JOINT AFFIDAVIT |,

| ’ JULIAN O. VON KALINOWS KI, "ROBERT E. COOPER, JOHN Ww.

I THOMAS, PETER DORSEY, SAMUEL W. MURPHY, JKv, MERRELL E. CLARK,

JR., ROBERTS B. OWEN, ALLEN *. MAULSBY , JOHN D. FRENCH, GORDON 3

‘BUSDICKER and LAWRENCE W. HAYES being wpa sworn, each individu-

ally and jointly meas: and say:

1. Each of affiants is an attorney who has. nepre-

sented one of the defendants herein (Pfizer Inc., imeriéan

' Cyanamid Company, etskol-Meers Company, Squibb Beech-‘iut, Inc.,

and The Upjohn Company) in the proceedings. had in these action:

before the Honorable Miles W. Lord. bach affiant has personal’

knowledre of’ some of the facts stated Kétein and information anu

belief of the remainder thereof, but each is familiar with the

events which have transpired in these piecieaateies and the circur-

stances in which they have on place, including the demeanor anc

ati 1tudes as wel] as ne isclndie of sOaee Lord. Each submits thi

. d6a

- ® a

affidavit in support of defendants' joint applica’ ic? and motion |

requesting that the Honorable Miles w. Lord recuse himself from

proceed ing,. further as Judge in these actions.

than 150 antitrust trebl

a number of di<ferent ca

wholesalers and retailer

competition and fix pric

‘drug market. Many of th

and have been pernitted

dition, the United State

from its purchases. of de

lation of Pfizer’ Ss Coney

claims on the’ et spec

recently, all tne cases,

throughout the country,

‘New York for pretrial pr

h. majority of these case

. This complex litigation. now involves 56 of the more

‘were pending in the Southern District ol

e damage actions which were brought by

tegories of plaintiffs inciuding states,

~ “ dneurance companies, private hospitals,

‘ agricultural purchasers:and competitors, each alleging that de-

.fendants conspired in violation of the Sherman Act to exclude

es in the road spectrum antibiotic

ese cases were brought as class actions

to proceed on that basis. In ad- =

3 has sued for single damages arising

ferndants' uote and for cancel-

er patent covering product and process

trum antibiotic drug tetracycline. Until

originally filed in. Judicial districts

oceedings pursuant to 28 u.S.c. § 1407.

3 were settled, including suits of 43 of

50 states, coeentce hospi

retailers, pursuant to 0

been made by defendants.

Judge Inzer B. Wyatt. (wh

{in all the cases until J

tals, Blue Cross, wholesalers and

ffers totaling $132,500,000 which | had

_ These settlements were ered by

oO had presided over pretrial proceedings

udge Lord' Ss assignment by the Judicial

Panel on Multidistrict. Litigation to the "litigating cases" in

December of 1970) and also by the Second Circuit Court. of Appeals.

Most of the reina ining cases have,.been transferred by Judge Lord

to the District of Minnesota for trial pursuant to 28 U.S.C.

§ 1404(a) or, in the few instances where cases were orivinally

filed there, are being pemanded to that District.

3»

—

-23(e)- in the event of settlement:

37 a :

ae ' 3. Each of the-afftants has concluded on the basis of

his personal experience in these proceedings,, and on informat ior

and belief, that Judge Lord possesses, and has possessed from tthe

outset, such. prejudice arainst defendants that it will he impos-

‘sible for him to preside over further pretrial proceedines or at

trial of these actions in such fair, equitable and ftudictous

manner as the law and fundamental concepts of due process re-

quire. Moreover, each of the affiants has similarly concluded.

. ©

that Judge Lord possesses such prejudice against defendants that |

it would be imposstble for him to perform fairly such fudicial

functions as mirht ever be required in these actions under Rule

4. We have set forth In this joint affidavit snecifirc

“-{ncidents which we bélieve manifest Judge Lord's bias and preju-

dice. In substance, these incidents show that Judpe Lord has

improperziy assumed the role of a prosecutor .and advocate against

defendants and has increasingly become more arpressive and open

in this role. In addition, our individual observations of Judre

Lord's demeanor during these proceedings form an important -part

of our conclusions about his prefudice, .and they have contri- —

: > hae :

buted to our conviction that ,it is impossible for. Judge lord

fairly to preside either over further pretrial proceedinrs --

including any hearing pursuant to F.R.°Civ. P. 23(e) -- or at -

. .

trial. . coe #

5. Each affiant submits this affidavit with extrers

sie Gudend hie sane ne do not assert that Judre Lord's preju-

dice is eideneuraiy s deliberate .or conscious one. Ali of us.

have some deep-seated feelings of which we are unaware, and we

respond to their powerful: forces without knowing it. But |

defendants' riphts to a fair trial will be imperiled by any such

prejudice.

38a

6. These actions are.of great importance to de-,

fendants. Serious and ‘far reaching charges of wrongdoing have

‘been made, and the claims for money damages involve extremely

large ‘sums. Because many of the actions are being mafintained as

-\*.class actions -- some on behalf of untold millions of individual

consumers -- trial o° these actions will adjudicate. the riphts —

between many mfllions of individuals, business entities, and,

rovernmentat t{nstitutions ane the defendants. Whatever litipa-

tion, foes forward will be extremely lengthy, ‘complex, t ime-consu-

ming and.costly for all concerned. Accordingly, it ‘1s extremely

important that defendants be ccuret btw tale trial before a

fair and impartial tribunal. .

7. Dbeféndants are ‘cuape lied. to make this application:

now ;. they could not have fairly done so earlier. While from the

ber inning there were indications and nints ‘of Judge Lord's -per-

sonal prejudice apainst and hostility toward defendants,’ none of

: the defendants believed that it was. proper to take the eta

step of making an application to recuse based on those'-incidents

. '

alone. Defendants hoped that Judge Lord's appearance of bias and

—_—_———— =a

‘his prosecutorial attitude were {llusory. Events which have

occurred in paeeak Weeks have made Judre Lord's attitudes and.

sentiments in this ritigation clear, and nave neces sitated re-

course to this application.

B. The extent of Judre lord's aie Guabes and pias

recently became clear as plaintiffs vegan taking depositions.

Aurust 18, 1971 the deposition commenced of Harvey, W. Paelblute,

la patent attorney. formerly pha kowed by American Cyanamia Company

|" who, during, the 1948-55 period, had. prosecuted Cyanamid's |

| Aureomycin and tetracycline patent Applications and Wa. 2

participant in events. relating to the patent aspects of tnis

{ij

}

| 39a

litigation. Plaintiffs insis ee that Edelblute's deposition t be

held before Judge’ Lord, Tarough the first six days of the

deposition, despite defendants? objection, Judge teed attended

each session and exhibited a stronr and, we believe, extraordi-

nary personal interest. in the testimony. Mr. Edelblute, who left.

Cyanamid's etinioy in 1958 and is now retired and more tha Sixty

years Of age was called upon to testify to. the detatls of .complex

matters iets had socueea fifteen to twenty -five years pee He

was severely handled by Judrpe Lord. On-numerous occasions, Judre

Lord interrorated the witness, often ‘in an aggressive and angry

; Manner. He suggested openly that.the ittnenk was lying, repeated-.

le rs ; |

ly criticized Mr. Edelblute's m manner of res ponding, and on one

| oc¢asion threatened to cue a fline. - Pigetheradee - Judge Lord

| Suggestéd areas of inquiry and leads to follow for. the benefit

| of plaintiffs' counsel, a‘trial attorney from the Department of

' Justice.

Althour h the transcript does not. reveal either. Judge

| Lord's fervor or tone of voice in his interroration of this pre-

j i _ ‘

, trial-witness,-the transcript does establish the utilization of |

high office to serve as an advocate for Plaintiffs and to in-

'timidate ‘Mr. Fdelblute in an attempt to influence his testimony:

"THE COURT: I will tell you one’ thine: At some

point this witness is roing to ret rinneéda. down and

answer direct questions. He op & lawyer. He is

witness. He is under’ oath. My ob: servation here,

which I don' £ propose to ineeenotaen into anything

that roes before the jury, that he is actine ina

very devious manner. (Tr. Vol. II at 214)

"THE COURT: You see, my. atuobd ties to you was

not fear. Three of four times, you have made what

you call miss tatements, and I have done nothing

about it, but when-you refuse to answer a direct

question, and when you try and avoid the question

or give an answer to a‘ question that wasn't: asked,

you are poing to hear from me here and now. If at

a later time somebody comes up and proves you lied

here, you will hear from me then. If you just give

your best estimate and your best Judement on these

40a °

things, that is all-that is required of you. You '.

are not supposed to,sign.an oath in blood on every-

thing. Do your best now. (Tr. Vol. II at 258-59) *

“THE COURT: Well, I think he might be spoiling

a good witness for the trial by going through this,

but that is his business. I don't mean to criticize

you, Mr. Owens. . . te

"MR. OWENS [counsel]. for the. United States]:

I am sorry, I didn't hear it df it was criticism.

y- .

4 ° - ‘ °

“THE COURT: I am just saying that. much of

this might be education to Mr. Edelblute, but

that is the chance ‘we take. (Tr. Vol. II at 270)

.* * 4 .

"THE COURT: Now, that's not an answer to the

question, and you are going to have to straighten

out and fly right or the Court is going to impose’

a little fine on you. °

“MR. S. MURPHY [counsel for Cyanamid]: Well,

Your Honor, I am going, to except to that. —_—

“THE COURT: You may except to it, arid you may

appeal from it. If he doesn’t start answering ques-

tions, he is going tc start getting fines for it.

vw. S. MURPHY: May I have that question read .

pack then?

“THE COURT: Yes. He understand it. You

understand it, and I understand it.

mR. S. MURPHY: No, Your Honor, I do not.

“THE COURT: All right, read the last four or

five remarks back. ° :

(The last few questions and answers were

———-pead by the teporter.) ;

. “THE COURT: He knows that that is a wrong

answer, and we all mow it is a.wronr answer. ——

_ (MR. S. MURPHY: I suggest, Your Honor, that ——

it is not a wrong answer. e

THE COURT: It doesn't strike meas being

right Ask it again. We will try again. (Tr.

Vol. II at 253-54) ae “.

e 6 @

“THE COURT: I think that is the best answer

you are going to get out of him as along as he keeps

contradicting himself. So, why don't you just go

ian ars

-along. I submit that he has contradicted himself

L _,-by telling us about a whole page of mutants that

| produced more.

"MR. S. MURPHY: I sutmit, Your ts. he has |

| not. Of course, the tcanscript will show what it

I. shows. (Tr. Vol. at 154) -

* # @

ae) . "THE COURT: ene. I dia cut*you off, Mr. Owens.

* “I really don't mean to cut you off, but it-is obvious

that hg is going to come rut a little different

. answer every time, so don't vou nave _the meat of it

: now? — Vol II at 219) .

* * @

ie “THE COURT: Seite you get into this area of co-

i production there are many, many documents which I.

i ‘ have no way of kn6wing what the. government or the

[ plaintiffs might have seen. But you want to remember

‘ _ | ° what the material that 1s available that shows what

you really did see.is available to the Court ‘and

[a . *Will soom be available to the plaintiffs and you

better judge your answers accordingly because I would

hope that at this point we would get right down to ”

busifiess. And if there Rp B.A, ht ,

to make you just have to make them.

——

If you don't make them and if the Court is

Satisfjed you should have made them we will deal

with that later. (Tr. Vol. IV at-161) 5

* 6 @

"THE COURT: On this particular one, my recollec-

tion is that he had cénsiderable time to review it

during the proceeding and 1 am very troubled. by this

' witness’ recalc:trance. When he is in the mood, he

“ Can go along and tell you-what a document is. When

he is out of the mood, you can't get anything out .

of it, and I am no. sure it would help him to give

him the documents in advance. I go somewhat 7~ 3 what

is happening here.". (Tr. Vol. IV at 255) ’

Two examples of Judge Lord's interrogation of Mr. Edel-

blute- show that the-interrogation was conducted in a manner

ééeiqnee to cajole or intimidate the witness into testifyine to.

the contlusion which Judge Lord and. plaintiffs desired:

“THE COURT: Now, what was the reasonable

basis? ; .

‘° “THE WITNESS: That these fermentation liquors rs

are unstable and they will not -- unless special.

precautions are taken they will change their cor- .

position in very short order after the fermentation

has -been completed.

}

42a

“THE COURT: Well, now, .let me interrupt. -

Didn*t your answer running from "Obviously., the

Termentatior . liquors that have been produced” 4 down

- to where you say “no tetracycline was found". -

wasn't that Just one big broad assumption?

"THE WITNESS: Yes, I suppose that is correct.

“THE COURT: It really wasn't based on real

‘genuine investigation and scientific knowledge,

was it?

“THE WITNESS: No, except that I had’ seen a

report, I am sure,,in which they said no other anti-

biotic had been found in these particular liquors,

which I don't know anything oe. -- probably even.

then --.

“DHE COURT: If you had. had the shoe on the

other foot and were trying to prove prior produc-

tion of tetracycline, you wouldn't have. answered

this the same way, would you?

“THE WITNESS: Well, odDViously not. (Tr. Vol.

IV, p- 171) .

*~o ¢

._ * °

"MR. DORSEY: But, at any rate, it séems to me

that a question from the Court in the form of your

question which was clearly a leading question -- -

"THE CCURT: It was.

"MR. DORSEY: -- to ask him whether or not his

conclusions weren't based some broad general assump-

tion is much more calculated to lead to the answer

Which the Court wants, an affirmative answer than

would a similar question from Counsel.,-

And I don't know quite what the @bjection should

be, but I would like to note our objection to that

question.

"THE COURT: That is something we can adjust

later. But the Witness is 60 adversary and so overly

cautious and so, as it were, odtrusive, such an

ovfuscator, 1 really lose patience waiting around

for him to answer a direct question.

"WR. DORSEY: Well, that’s obvious, I think.

But let me say this: that an answer to the

-- I think what he was saying in answer to your

question was the assumption was since no other

antibiotic was found you could therefore assume

‘that tetracycline, which was an antibiotic, wasn’t

found. That wasn't obvious in his answer. and

that you d¥ydn't give\.him a chance to make that.

seer

43a

“THE COURT: Mr. Dorsey, that might, be.

Since he didn't look -and find and know about it

-- he says he didn't -- whether or not he is

telling the truth about that, of course, remains

to be seen. But sometimes I get a little.confused

at whose documents I am looking at. But someplace -

in the documents that are evidences are probably

quite contrary to that. If he looked he could

have found. And the question then is: can you

‘@o to the patent [sic] office blindfolded and say

"It is all black out there"? (Tr. Vol. IV, pp.

2174-175) © "Dies

"THE. COURT: Let me ask @ question. Mr. Watson

said that you should submit one of your best strains

and you-should "by no means attempt to hoodwink any-

one by placing on file a dead or weak culture or

one that gives very low yields of aureomycin. The

mold should of course be the one that is described

by us in our patent application and which produces

satisfactory yields of aureomycin."

"THE WITNESS: Right

=> a ee ee + Sarr

“THE COURT: Mr. Malcolm says he is a bit weak

on biclogy as related to microorganisms, which meant,

Gid it not, that Mr. Malcolm didn't follow Mr. Watson's

advice? .

"THE WITNESS: Well, he, Dr. Malcolm, I think,

was upset by the --

"THE COURT: Answer my question.

"THE WITNESS: Yes.

"MR. COOPER: Your Honor, I want to object to the

question. That calls for, I th‘ .k, Mr. Malcolm's state

of mind. Or does it relate to some conversation?

"THE COURT: It relates to how he read‘this docu-

ment. .

And what did he answer? He didn't follow Mr.

Watson's advice, did he?

"THE WITNESS: No." (Tr. Vol. I, 1€5)

At the September 8, 1971 pretrial hearing, Judge Lord

made the following statement concerning his views of Mr. Edel-

blute'’s testimony: A ;

44a

—

"THE COURT: However, I am not unmindful: of

the fact that fraud on the Patent Office is here

alleged and that for about seven days Mr. Harvey

Edelblute sat on the witness stand and with all

of the power at his disposal as a consultant and

employee of the defendant corporation Cyanamid, |

he alleged that nothing which he did or .saia con-

stituted fraud despite the sachets of the FTC and

the grand Jury.

"I suppose I am going to stop talking very

short ly now but I am edad troubled by what I

see. (Tr. at 61)

Judge Lord's expression of disappointment that Mr. Edelblute did

not admit-the commission of a fraud shows the extent to which

he prejudged important issues in these cases.

9. Judge Lord has taken aggressive action to attempt

to dissuade the United States Department of Justice from settl-

ine its civil action against the lata siti in an admitted

effort ‘te assist the other plaintiffs.

The defendants had been engaged in senutne nerotia-

tions with the Department of Justice ir oan attempt to settle |

the United States action. Recently an understanding was reached,

as to the terms of a settlement which we understand the Assist-

ant Attorney General of the United States, Richard W. McLaren, |

intends to recommend to the Attorney General of the United

States. When Judge Lord became aware of the widerstanding he

contacted Assistant Attorney General McLaren for the apparent

purpose of dissuading the Department of Justice from proceeding

with the sett lenent, although Judge Lord had no authority over

the settlement, nor indeed was it before him in any form or

‘fashion. Regarding that telephone conversation, Judge Lord

_ subsequently (on August 25, 1971) stated on the record that:

"I believe I made a record of the fact that

I previously had talked to Mr. McLaren on the

phone and had suggested to him that’ count number

45a,

l was so fraught with public interest and that the

very integrity of the Court system seemed at stake

assuming prima facie that the allegations are

‘established then the courts of this nation have

been imposed upon, and for that reason I wanted to-

confer with him..-‘fore he made any settlement, and

I actually at.’thet time had considered the advis-

ability, of doing as Judge Davies did down in

Little Rock when he got in trouble with his school

problem, actually appointing the Federal attorneys

to handle that aspect of it which had to do with

the fraud committed on the court." (Edelblute Tr.

Vol. V at 417)

‘On August 24 and August 25 during the Edelblute

deposition, the Judge was openly critical of the prospective

settlement of the United States case, expressing his view that

the Government should not be allowed to drop its suit (Edelblute

Tr. Vol. IV at 219-22, 247; Vol. V at 403, 417) and going so far

«a8 to suggest that he would not let the Gevernment out +fdet-—-

blute Tr. Vol V at 447). <

On those occasions; Judge Lord stated "I am interested

in having the Government stay. in these cases" because "Count I

has public interest in, it." (Edelblute Tr. Vol./IV at 221)

Judge Lord observed that he believed the Government had made a

"thoroughly substantial prima facie case that certain\of these

patents were fraudulently obtained," (Edelblute Tr. Vol. IV at

418) and that "There is an indication at this point that several

of the defendants were privy to that fraud, prima facie again."

(Edelblute Tr. Vol. IV -at 419)

Judge Lord continued:

"Well, so we may have two proceedings. We may

have one proceeding to void the patents ab initio, ;

where the Government has already asked for that.

We may have another proceeding, or, at least, some.

moves toward the end that something should be done

to vindicate the integrity of the judicial system.

"I am rather disturbed by what I see by way of

46a ao

procedures in the Patent Office, and I am also dis-

turbed by the fact that if thé Government's decision

to settle-this case is based upon the payment of

money, then they should‘never have brought Count I |

in the first place, and if they settle Count I for

the payment of money on Counts 2 and 3, then it's . ae

possible here in America to buy a-monopoly. And

“that disturbs me. I am not sure that is the way our

-eountry works." (Edelblute Tr. Vol. IV at 421i, 422)

“ és .

At a pretrial conference on.September 2, 1971, Judge |

Lord again raised’ the question of the United States Government

settlement, but on that occasion he openly expressed his over-.

“affected if deprived of the help of the Antitrust Division's

riding concern that the remaining plaintiffs would be adversely |

adversary skills and resources:

"THE COURT: You see, I recognize the problem |

that would be created by the government settling

_—__ ia .

» “a So wnat is the Attorney General doing if he :

proposes to settle this case? He is saying: ‘You

can do what you want to in the Patent Office, even

though we have a prima facie case'; and he is say-

ing if the states, come in, and court after court

has stated that the reason for allowing the longer

statute of limitations is to allow the government

to lead the way in antitrust cases, because of the

peculiar ability that the government has, the in-

Cisive way they have of getting at the facts; here

we have both of those reasons, and apparently the

Justice Department wants to blow them both out of

the water.” (Tr. at 43-45)

At Judre Lord's request, Lewis Bernstein; Chief of the

Special Litigation Section of the antitrust Division, appeared on

September 8, 1971, before the Court to respond. to the Court's in-

quiry regarding the prospects of a settlement of the United.States

case. Judge Lord questioned Mr. Bernstein in an attempt to dis-

suade the Government from effecting the settlement:

47a

"THE COURT: Now, I don't want’ to argue with

you, but let me ask you this. When. you filed Count

1, didn't you think you had a prima facie case?

"MR. BERNSTEIN: Yes, your Honor. f

"THE COURT: Have you developed any new evi-

dence along that line? et

‘ "MR. BERNSTEIN: We have developed evidence

SO that we believe that our case is Strong.

"THE COURT: Did you think the public interest -

required you to file Count 1 when you filed it? :

"MR. BERNSTEIN: Yes, Your Honor.

"THE COURT: What has changed about the public

interest? Disregard Counts 2 and 3 and tell me

what factors have changed concerning the interest °

of the public.in this ‘language, and let me at this

point read to you some language I know you are very

familiar with, but I want anybody who [is] review-

ing thiS record to know what it was when somebody

- said Judge Lord was prejudiced, Judge Lord became

an advocate, Judge Lord became overzealous."

a -_ Be

el - -

". . . Well, many of these cases were brought in

"54 and '55, in this, the Soutnern District of New

York, and I read this language to you for the pur-

pose of getting your explanation. And again it is

entirely an executive province and an executive

prerogative to decide, but it would be interesting,

I think, here, on the record, to say what it is.

that has prompted the Department of Justice to say that.

only a few short years ago it thought it had a great

deal of justification for proceeding to cance’ these

patents, that it had a legal basis for it, t as the

public interest demanded it, and this was the posture

of the Department of Justice, and now to Say, when

your.case is, as you say, stronger, that you have

more evidence, that you should not proceed to do that.

I really believe that there is a very great question

as to whether I could or should require you to pro-

ceed, but it would be of great interest, I think,

and not only of academic interest, but it would be

interesting to know why you now feel that you were

wrong in your original assessment of this case."

(Tr. at 30-33)

- "Tat is all well and good except your first

Statement, that the defendants were tying the settle-

ment, the delivery of the money, to a dismissal of

~ : ; 48a .- bs, 2)

the public interest count, number 1. I just want,

you to think about it. It is a preblem that I

have not been able to satisfactorily rationalize.

It is, as I have said before, something like using

a criminal prosecution to collect a civil debt;

then canceling the criminal prosecution after the

debt is paid. Or, on the other hand, it might be

“analogous to buying a monopoly. Either one of

them are not quite consistent with what we ordin-

arily think of as being the duty of a litigant or

of a law enforcement official." (Tr. at 45-46)

Although Judge Lord's professed interest in the Govern-

ment settlement related only. to Count I (an action against Pfizer

only to cancel its tetracycline patent ) (Edelblute Tr. Vol. IV at

221) he also demanded that the Government advise him when the

conspiracy alleged in another count ended:

"lr would appreciate your written submission to

include your conciusion as to when this conspiracy

ended, and_to buttress up your argument that all is

corrected by now settling in the manner you have

described." (9/8/71, Tr. at 69)

Judge Lord's introductory statements at the September.

8th hearing expressed concern “whether or not [the government's

withdrawal] ‘in fairness to the other litigants {clearly not in-

cluding the defendants]... is appropriate at this time" (Tr. at

| -5). Thereafter, the Court stated:

"I think men like the leaders of the Plaintiffs

National Steering Committee who are here, or Bob :

Murphy, the Assistant Attorney General from California,

or Mr. Benoy from North Carolina, or any of these other.

gentlemen, -- Mr. Nugent -- would be helpless -to go

through these aspects of the documents {the patent

aspects). I just don't think they are that much better

than I am at this field.” (Tr. at 50)

Judge Lord further advised government counsel as to the

effect the proposed United States settlement would have on the

"game plan” as devised and being followed by him for disposition

49a

t of the pending litigation:

‘

4 "THE COURT: Let me just make another little

ae statement here so we don't have any aréa of mistake.

or mystery about what has motivated the Court in

doing exactly what I have done.

I don't believe in making speeches for the

record that do not truly reflect my feelings on the

a Subject. I deliberately combined the states cases

| with the Federal case on the theory that it might

i Save us a multiplicity of trials. I was fully aware

| of the fact that the Count 1 in equity was to be

tried by the Court and we could try it with reason-

abTe dispa:ch. For that very reason I sat in on Mr.

i Edelblute’s, or a great portion of Mr. Edelblute's

H depositio. testimony so that I could get some’ gague

I - of credibility, to kind of pace the case and get the

i feel of ‘'t and see what it was that Mr. Owens was

\ driving it. oe

} A’. of these things have gone by the boardif

you settle this case. You. not ‘only in effect give

the plaintiffs an’ added burden of trying your case,

but you upset the ‘game plan' which the Court, after

a wood deal of consideration and deliberation set as

"a mean of disposing not only of the cases With which

twas tombined, but all of these cases in one proceed-

| .ing. .

If it were going to come out to take the patent

issue of these cases and thén to turn the thing around,

and if there was an invalidity of the patent just go

ahead on the Walker process doctrine and handle the

antitrust aspects of it. :

| I cannot honestly say that you will not multiply

“many times the problems that the Court has in handling

Tats this litigation. If 1 were to“have’found that the

patent was valid and it was not obtained by fraud,

the patent aspect would also go out the window and ;

ir they would be put fo their antitrust case without the

Walker process aspect entering into it at all.

Now 1 say that on the recere sc that you hear,

and you good gentlemen who are representing the defend-

ants and feel put upon by the Court, know exactly. what

it is that I am talking about and what motivated me."

(Tr. 40-42)

| During the September 6 hearing, Judge Lord sua srnonte

| fssued an oral order to show cause why the competitor cases

| should not be transferred under 1404(a) to Minneapolis for isha. |

I (rr. at 67) Inasmuch as’ these cases had Khadieiinty been trans-

' ferred to Judre Lord for all pretrial eubeilinn:. it would aprear

‘that Judge Lord issued this order to show cause because he wanted

- the other plaintiffs to have the help at trial of one of the

counsel for the competitor plaintiffs, whom Judge Lord regards as

| an experienced patent litigator. (972/71, Tr. at 40-41)

“At the same session Judge Lord also expressed strong

views regarding the role and competency of the Patent Office, and

its effect on comnetition, which in and of itself evidences a

prejudice which, piven the Issues of these cases, woutd-make—tt—

impossible for defendants to have a fair trial: .

"I think you ourht to tell your Attorney

General. -if he wants to look at something he

ought 40 look at that Patent Office. That has

got to be the sickest institution that our

Government has ever invented. It is just as

far as I can see an attritional war between the

patent applicant and the patent examiners who

apparently got paid on the piece work for how

many patents they ccoul2 put out. And you car.

examine for months some poor fellows that are

out doing business and finally arrive at a pricé

structure and you might pet an antitrust suit

[sic]. But if you want to look, po back and

look in your patent Office and see what: is happening

‘to the Patent Office. I say that for the record and

for posterity. That has pot to be the weakest link

‘in the cemretitive: system in America." (Tr. at 68-€9)-

10. .This was not the first time Judge Lord attempted

to defeat a settlement proposal being considered by the parties

| to this litipration.

5la

—+—— > «Three months earlier, in May 197}. defendant-#fizer's

° ‘ - } e .

| endnast:, John Thomas, received a phone call from Attorney Stephen

{

Swig representing plaintiffs-in the State of Hawaii action. Mr.

Swig told Mr. Thomas that the Attorney General of Hawaii now

wished to accent the so-called "Alabama.Plan” settlement.® Mr.

| Thomas said that all defendants including Pfizer would accept

| Hawaii's offer to settle based on the Alabama Plan.-

\ ww However, before defendants could implement this settle-

ment offer it was withdrawn by a second phone call from Mr. Swip.

Mr. Swie related that he had just had a telephone conversation

with Judge Lord.. Judpe Lord had informed Mr. Swip that he would

refuse to approve this settlement or any settlement at the

“Alabama Plan" level. Mr. Swic sada thatinlight of the Court's

, attitude. the defendants should consider Hawaii's offer to settle

withdrawn. Judge Lord by letter dated May 14, 197] and addressed

| to counsel in all odes confirmed his telephone conversation with

| Mr. Swie and, apparently, with the Attorney-General himself,

stating that it would be "awkward" to approve the settlement on

| the basis of the mearre information then before him, and Stating

j; in addition that an adoption of Judge Wyatt's prior settlement

| apinion would involve "an evaluation of the Plaintiffs' prosnects"

| which the Court was riot prepared to do “at this time." .

Particularly after the approval of the "Alabama Plan"

erences acti = wy ses Ae ee i te i 5 a

* Under an offer of February 6, 1969 as modified May 9,°1969,

defendants had offered $100,000,000 to-settle the eclains of a?

States, consumers, retailers and wholesalers. As’ implemented

: this offer became known as the Alabama Plan." — Under it, some

H $85 million was deposited in escrow for 43 accepting states,

| - their consumers and all retailers and wholesalers in the

‘United States. That settlement plan was approved by the Dis-

‘trict Court (Judge Inzer’B. Wyatt presiding), 314 F. Sump. 710 |

(S.D.N.¥. 1970) and affirmed by the Court. of Apreals for the |

Second Circuit 440 F. 2d 1079 (2d Cir. 1971).

| settlements for &? otner kb ces by the Second Circuit, Judge Lord

j mae a duty, to hold 6 hearing on the proposed settlement, and not

(to discourage and impede any further settlement on that basis.

}

11. The events described in paragraphs 8, 9 and 10

{ °

j ware concerning Judge Lord's. actions with respect to the

Edelblute deposition and the prepesed settlements of the United

States and Hawaii actions, are not isolated instances. The bias

‘manifested more openly during recent events is underscored by

i many other incidents and events during the past year. When con-

sidered with his overall demeanor and the entire history of his

handling of this litigation, it compels affiants to conclude that

" Judge Lord's attftude and disposition. here, by reason of bias,

is" that of an advocate of plaintiffs’ cause and a prosecutor

| ageinst defendants, rather than an impartial judge. We set forth

in the following subparagraphs in¢idents which we believe further

| support our cone lusions of bias.

7° It must be appreciated that Judge Lord, an experienced

\ and sophisticated judge, has not formally stated his bias on the

record. Indeed, Judge Lord has been scrupulous in "protecting

the record.” |

(a) On December 18, 1970, at a noon meeting in

"chambers attended by plaintiffs’ atto:neys John Cochrane and

Richard Johnson, and John Prench and Michael Bress for defen-

dants, Judge Lore indicated that he was going to instruct state

| ,

. -18-

. . , Ba

plaintiffs to withdraw their then pending parens patrise motions

, (although, in his words, as a former attorney general he was

“sympathetic in general with the concept) and instead emphasize

the Class action approach to get the money back to the persons

. whom he described as having been "cheated." ;

(>) Prior to the assignment of the litigation to Judge .

Lord, defendants had sy tk aie: in the form of requests to

admit, strong evidence that certain of plaintiffs’ counsel (whe

_were seeking to represent large classes under Rule 23), had

; . r .

‘ attempted to solicit clients to bring into the proceedings.

During an informal lunch at Schiek's Restaurant in Minneapolis on

December 12, 1970, attended by Judge Lord, J. Gordon-(law clerk

for Judge wyatt) and Attorneys F. Boline, R. Johnson, J. French,

M.Bress and G. Busdicker, Judge Lord brushed aside the possi-

bility of solicitation by plaintiffs’ Semeve based on. his view

that solicitation was a lesser evil than leaving injured peopie

uncompensated.

| (c) At the Minneapolis pretrial conference of February

9, 1971, defendants were arguing that the plaintiffs’ proposed

program for massive broad discovery into defendants’ foreign

operations ‘was highly Anappropriate and improper under the Federal

Rules of Civil Preveéure . Judge Lord took an unusual approach to

‘this situation:

“THE COURT: Well, now, let me make this observa-

tion here to you, so that you will get it and so that

it be on the record, that some people have expressed

' the feeling that discovery should now be over, that

this case has been “in effect in litigation for 20 years,

and that there is nothing for these plaintiffs to do

except put together the known parts of this puzzle and

retry the case. But the last judge that reviewed this

case and reviewed everything that I know about it that

exists by way of eviacentiary material, said that the

plaintiffs have no better than a 50-50 chance of win-

_ming, and that was Judge Wyatt. And I don't feel that

I should force the plaintiffs into trfal with no

more evidence in the light of Judge Wyatt's valua-

tion. If he said there is @ 50-50 chance, it's at

least enough indication that there may be a lawsuit

here so that I should allow discovery. If he says

there is only a 50-50 chance, I am very reluctant

to reqvire that the plaintiffs go to trial with

those odds against them as long as they are willing

to look for more evidence.” (Tr. at 203).

"why don't we spend more time trying to find

out where, tf anywhere, there are such documents

in the United States. You see, what concerns me

is that you plaintiffs seem-to have given up on

ever finding anything and establishing the case

within the Continental confines of the United

States, but that you are going around the outside

of the crater and never getting down into the '

yoleano where the hot stuff is.” (Tr. at 209)

: (4) During pretrial conferences on May 5S and June 93

of 1971, Judge Lord appealed to plaintiff United States to share

its documentary resources with the other plaintiffs. (5/5/71,

tr. at. 125-26; 6/9/71, Tr. at 134). The Court also indicated

this sharing would be a conditfon precedent to the Government 's

right to settle with the defendants. (9/8/71, Tr. at 63, 79)

fe) During the course of discovery, defendants claimed

‘privilege on certain documents and submitted them to Judge Lore

for bis in camera inspection to rule on the asserted privilege.

-20-

‘in addition, defendants distributed schedules setting forth the

j onther. date and subject of each privileged document to the Court.

and plaintiffs. Judge Lord, sua sponte, issued to all counsel on

August 9, .197l a signed memorandum directing defendants to produce

“to the Court "all documents claimed as privileged including files

of counsel, outside and inside, of the defendants. Counsels'

files should be submitted in their entirety without exclusion of

| any Gocuments, ® even if thought to be non-privileged or not rele-

" - %

| vant. ... " Later during the aforementioned Edelblute deposi-

”

tion, Judge Lord urged the United States Government to remain in

the case and cited these documents as an inducement for them to do

so. (Tr. Vol. V at 446-47, compare 9/8/71, Tr. at 49-50, 63).

[No ruling on the attorney-client documents had been made at that

time, amd indeed none has been made to date.] Motivation behind

the Court's letter of August 9 was articulated at the July 27 pre-

trial conference.

"THE COURT: I want those documents [files of

- outside attorneys for defendants) because I have tv

consider the other question of whether or not you

’ have been unwittingly toois to a scheme to promote

an illegal plan.

"MR. WILLIAMS [Counsel for Pfizer]: As far

as I know, Your Honor, I am never an unwitting

tool, and I will take exception to that.

. “THE COURT: When I get through with you, I

may have to call you that; whether or not unwitting,

maybe, or maybe if you want to be unwitting I don’t

know what the ruling is yet. (Tr. at 112)

«@ “Internal files" >of outside counsel were subsequently

excluded from the scope of the memorandum. :

56a

This comment is exceptionally revealing since it was made in the

absence of any suggestion by plaintiffs that defendants’ counsel:

in these cases or in prior related cases-were in any manner,

either knowingly or unknowingly, connected -with defendants'

alleged fllegal activities and since the Judge later admitted

that he did not understand most of the documents on which privi-

lege was claimed (9/8/71, Tr. at 49). : :

(f) In another ‘sequence of events in early. August,

, Judge Lord said in substance that some of Bristol's documents

indicated to him that Pristol's lawyers were affirmatively parti-

cipating in the “doctoring".of evidence. He also said that it was

not going to bother him.to find that “lawyers were part of the

/ conspiracy." The detaiis of these events are set fort in the

| -separate affidavit of Frank A. Sprole.

_(g) Judge Lord has also solicited lawsuits against

defendants. At the pretrial conference on March 6, while recog-

nizing that it “isn't the kind of thing to spread on the record"

(Tr. Vol. I at 157) he “urged,” “invited” and "drafted" (the

- Judge's words) @ private attorney (Paul Scanlon) to go out and

| find some hospital patients to form a class which none of the

: ie. 66a plaintiffs had yet sought to represent (Tr. Vol. I at

154): ® Defense counsel, strenuously objecting to this "“invita-

tion" ° engage in unethical professional conduct, pointed out

that it\was not the Court’ s duty to make certain all possible

claims against defendants were being asserted (Tr. Vol. I at 159).

However, Judge Lord persisted in the matter (Pretrial Conf. 3/17,

Tr. Vol. I at 251; Tr. Vol. II at 33-34), to the. extent of sus-

pending the ban on class member communications entered by Judge

Wyatt to protect against just “such abuses. (Tr. Vol. II at 38).

®- The Court subsequently dismissed the claims of the hospital |

patient class. :

57a

12. Each of the affiants has regretfully and reluctantly

concluded that Judge Lord possesses such prejudice against the

| defendants that he will be unable, even exercising the freatest

personal discipline, to provide defendants with a fair trial.

Crutcher

ng Street

Los Angeles, California

Subscribed and sworn to

_ before me this /6&* day

of September, 1971.

y c

NELRT IY is ee be) i |

Netecs tte et at New York

N. Soames

Chait od. Sic Sok ‘

. t.

eumy

7 bw nse ‘Kobe = Corpor

Robert E. Cooper

Gibson, Dunn & eutiaaes '

634 South Spring Street °

Los Angeles, California

| Subscribed and sworn to

_ before me this 1G* day . .

_ of September, 1971. . :

<.- ee a i

Ge. .

» 02 John W. Thomas

Legal Division

Pfizer, Inc.

235 East 42nd Street

New York, New York

' Subscribed and sworn to

defore me this I6™ day

of September, 1971.

ary

I ppealydg ih Meo oINGd rom

*HUTY Dbl Stan ot New York

| Ni. Bh sce Mant

/ Qu ht fF ‘ * € snty

sf ote de pup

* oa ) wie

Peter Dorsey

. * Dorsey, Marquart, Windhorst, West

& Halladay \

2400 First National Ba uilding

Minneapolis, Minnesota 55402

Subscribed and sworn to

before me this day

.of September, 1971.

Notary Public | a .

amue onl lc °

Donovan Leisure Newton & ma i

Two Wall Street.

New York, New York 10005

| Subscribed and sworn to

‘before me this /C™ day

(of, September, 1971.

MT MrT, 1

Ntges Moca Stee at New York

nt #e75S

O “hed a Now York County

tu seen Beppe. Ma ob 72

Winthrop, “Stimson, a. & Robert:

40 Wall Street

New York, New York 10005

| Subscribed and sworn to

‘before me this j;¢* day

‘of Séptember, 1971. |

\t ERED HB. HODDINOTT, TR

Katery Pulls. Seute of Nee Vork

No. 314920875

i 4... ‘es

Subscribed and sworn to

before me this - day

of September, 1971.

{, fie

é Lett Pub Biic

v« mw sing spires Crt 31, 197

Subs¢ribed and sworn to

before me this //% day

of September, 1971.

ALBERT F. MARCELLINO

Notary Public. State of New York

* Mo. pach neat A :

lified um Kichmond County

PA ae filed in New York County

Commission Expires March 30, 1973

59a

Li Cae

Roberts B. Swen

Covington & Burling

888 Sixteenth Stree

TNE ER, >. €,

t, N.wW.

20006

aulsby.

fen” Swaine & Moore

One. Chase Manhattan:

New York, New York

\ PR aa ORG

Plaza

10005

60a

S/ JOHN D. FRENCH

John D. French

Faegre & Benson

1300 Northwestern Bank Building

Minneapolis, Minnesota 55402

Subscribed and sworn to

before me this day

of September, 1971.

Notary Public

H S/ GORDON G. BUSDICKER

! . Gordon G. Busdicker

i , ‘ Faegre & Benson

i - 1300 Northwestern Bank Building

| Minneapolis, Minnesota 55402.

Subscribed and sworn to

before me this day

of September, 1971. * r

- Notary Public

S/ LAWRENCE J. HAYES

Lawrence J. Hayes

Maun, Hazel, Green, Hayes,

3 Simon & Aretz

332 Hamm Building

St. Paul, Minnesota.

7 Subseribed and sworn to

|, before me this ' day

| of September, 1971.

{

Notary Public

6la

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CO SStMS CSS ORS RS ROE e mee een a x

IN RE.COORDINATED PRETRIAL : |

4-71-435

PROCEEDINGS IN ANTIBIOTIC : |

; : ALL ACTIONS

ANTITRUST ACTIONS :

Pdip i naelilliacdedetaia iitledeaag cee ot i

UNITED STATES DISTRICT couRT .-

SOUTHERN DISTRICT OF NEW YORK

edn i Ue aS PES Pete ee -

IN RE COORDINATED PRETRIAL :

; M-19-934

PROCEEDINGS IN ANTIBIOTIC ete

; LLL ACTIONS

ANTITRUST ACTIONS

ielanincticbiti dient hig nid ialssicanaciedume

AFFIDAVIT

STATE OF NEW YORK . )

COUNTRY OF NEW YORK)

EDMUND T. PRATT, JR., being duly sworn, deposes and

says: } ; |

1. I am Executive Vice President of Pfizer Inc.,

with responsibility for the administrative divisions of Pfizer

Inc., including ie Legal Division. : I nave followed events in

the above entitled litigation not only. because of my responsci-

bilities as Executive Vice President, but also because of the

importance of the cases to Pfizer. ‘

62a

2, Pfizer respectfully requests this Court,, tne.

Honorable Miles W. Icrd, to recuse itself pursuant to the Fifth

Amendment to ‘ne ‘or gtttution of the United Statés and 28 U.S.C.

§ 144 from proceeding further on Judge in this litigation. I

have concluded that Judge Lor? possesses, and has possessed

from and before his ‘assignment to these cases, strong, uns hak -

able \prejudice against the defendants, including Pfizer, and

that as @ result, Judge Lord nas acted as a prosecutor and

advocate or behalf of the plaintiffs. I am convinced that

Pfizer cay not obtain a fair trial with Judge Lord presiding.

. My conclusions concerning Judge Lord's bias are.

based upon facts, events and observations related to me by

Pfizer's counsel, and upon my own review of the proceedings

‘eerein. "The specific details. of the facts, events and observa- -

tions.upon whicn my conclusions are based are recited in the

joint affidavit of Messrs. von Kalinowski, Cooper and Thomas,

counsel for Pfizer, and other defendants! counsel, suomittec

herewith, which I néreby refer to and which I nereby incorporat®

by reference as though set forth in full herein.

WHEHEEORE, defendant Pfizer Inc. demands that the

Honorable Miles W. Lord proceed .no further in this cause, and

that another judge be assigned to near this action.

eee

Edmund T. rratt, .

Subscribed and sworn to before

me this/égfday of September, 1971. 5

—

63a

CERTIFICATE OF COUWISHL

ROBERT E, COOPER, being Counsel of Record for =

the defendant Pfizer Inc., does hereby certify that

EDMUND T. PRATT, JR. of Pfizer Inc. has made the attacned

affidavit on the advice of counsel in the good faith and

genuine belief that the facts stated there n and the con-

clusions drawn therefrom are true.’

Tne aforesaid affidavit and the facts and conclusions

Stated therein are based in part on informaltion that I related

to the affiant, and I certify ry gccd faith| and belief in

: > ; ee

their-truth. ; . , {

GIBSON, DUNN & CRUTCHER

Ry Kft On

cesetteie bon Coopey

Attorneys for Pfizer Inc.

235 East 4end street’

New York, New York 10017

(212) 573-3407, -

LAWRENCE J.. HAYES, being local Counsel of Record for ih

the defendant Pfizer Inc., does hereby Poe that

EDMUND . PRATT, JR. of Pfizer Inc. has madé the attached

affidavit on the advice of counsel in the good faith and

eenuine belief that tie facts stated tospeda and the con-

clusions drawn, therefrom are true. | i) |

. The aforesaid affidavit and the facts and conclusions

Stated therein are based in part on information that Robert E.

Cooper, Esq. related to the affiant, and I certify my rood

faith and velief in their truth. ) iar |

MA 1, MAZEL, GREL? . WAYLS, OLMON & NEW

H i

By /9/ lan. conee J. liayes I

Ore os Se 1 Wi wate 4 '

| UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

IN RE COORDINATED PRETRIAL : . 4-7) Civ. 435

PROCEEDINGS IN ANTIBIOTIC : ALL ACTIONS

ANTITRUST ACTIONS : g

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UN RE COORDINATED PRETRIAL : M-19-93A

PROCEEDINGS IN ANTIBIOTIC :* ° @lt acTrons

ANTITRUST ACTIONS * 5

oeeeeeeeeeeeeee §

. APPIDAVIT

* HAROLD B. GROSS, being Guly sworn, Geposes and says:

1. 1 em Secretary ané General Counsel of American

Cyanamia Company ("Cyananié"), a defendant in each of the above-

captioned actions. Because of its extraordinary importence to

Cyanani¢, Tt have been attentive to the progress of this litige-

tion, and I make this affidavit on_Cyananid’s behalf.

2. Cyanamid respectfully applies, pursuant to the

Fifth Amendment to the Constitution of the United States an¢ 26

v.5.C. Sec. 18%, for this Court, the Honorable miles w. Lar, to

It is Cyanamid’s belief that Judge Lord possesses, and has

recuse itself from proceeding further a8 Judge in this litigation.

One

. ©

possesses from*and before his assignment to these cases, a stron,

unshakal le prejudice against the defendants, including Cyanamid, ~

which has léd him to adopt the mantle of prosecutor-Judre ‘in the

conduct of pretrial proceedings. As a consequence, Cyanamid’ s

ability to. obtain the fair hearing. which is its inalienable

right is jeopardized. : pa!

3. My conclusions concerning Judge Lord's bias are

based upon facts, events and observations related to me by

Cyanamid's counsel and upon my own review of the proceedings

herein. The specific details of the facts, events one observa-

tions upon which my conclusions are based‘are recited in the

paragraphs of the Joint affidavit of counsel subeitted heresith,

which I hereby refer to and incorporate herein by reference.

, WHEPEPOPE, defendant Cyanarid demands that the

Honorable Miles W. Lord proceed no further in these actions, and

that another judge be assigned. .

; Harta Reva

Subserited Sworn to before

me this 1/4 Gay of Septenter, 1971.

apse Del jem

a. i : ’ a)

oa |

CERTIFICATE OF COUNSEL

SAMUEL W. MURPHY, JR. and PETER DORSEY, being Counsel

of Record for the defendant American Cyanamid Company, do hereby

certify that HAROLD B. GROSS of American Cyanamid Company has

made the attached affidavit on the advice of counsel in the good

faith and genuine belief that the facts stated therein and the

conclusions drawn therefrom are true.

on The aforesaid affidavit and the facts and conclusions

stated therein are based in part on information that we have

related to the affiant, and we certify our good faith and belief

in their truth.

DONOVAN LEISURE NEWTON 6 IFVINE

Two Wall Street

New York, New York 10005

2800 First National Bank Bul

Minneapolis, Minnesota 55%02

Attorneys for American Cyananié

Company

67a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

IN RE COORDINATED PRETRIAL :

PROCEEDINGS IN ANTIBIOTIC M 19-93A

ANTITRUST ACTIONS - 3 i

FRANK A. SPROLE, being duly sworn, danas and

1. I am a Vice President of Bristol-myers Campany

("Bristol") and the head of its Legal Division. In the

course cf my duties T have been closely following the above

emtitied litigation, and I nake this affidavit on the Company's

behelf .'

J 2. Bristol respectfully makes application to the

Nomorable Miles W. Lord that he recuse himself pursuant to the

Fifth Amendment of the United States Constitution ond 28 USC

§ 144 from proceeding further as Judge in this litigation.

It is my belief that Judge Lord possesses, and has

possessed since before these cases were assigned to him, a

prejudice and bias against the Gefendants, including Bristol,

end their counsel, and that this bias and prejudice has led him

tiffs in the conduct of pretrial proceedings herein. As a

Gcnsequsnes, Bristol's right to fair and impartial pretrial

proceedings menceferth, and its right to a fair triel, are

imperiled.

68a ;

3. My belief as to Judge Lord's prejudice and bias

against Bristol and its co-defendants and their counsel is

based upon events and observations related to me by Bristol's

counsel and upon my own knowledge of the proceedings herein.

The details of these events and observations are set out below

upon information and belief and in the separate accompanying

Join: Affidavit of Counsel which I respectfully refer to and

incorporate herein by reference.

4. On Monday, August 2, 1976, Judge Lord called

a conference of counsel on short notice. Attorneys for plain-

tiffs and for some defendants were present, but no lawyer for

Bristol was able to attend. In the course of the conference

Judge Lord said in substance that some documents submitted to

him by Bristol under claim of attorney-client privilege showed

Bristol's lawyers telling the Company how to doctor evidence

or documents. Judge Lord referred to the firm of Fish, Richard-

son & Neave, who have been counsel to Bristol throughout the

tetracycline litigations beginning in 1954 and who are of counsel

in these pending cases.

5. On the following Monday, August 9, 1971, Judge Lord”

held a conference with counsel and with the Special Masters who

have been appointed to consider claims of privilege. In the

course of the conference, Judge Lord said in substance that oone

of Bristol's documents indicated to him that Bristol lawyers

were affirmatively participating in the doctoring of evidence.

Judge Lord said in effect “it’s not going to bother me to find

that the lawyers were part of the conspiracy; it doesn't

trouble me a bit.” Judge Lord identified two documents to

which he referred as 4 letter dated Oct. 29, 1954 from

rd-

16 th day of +f Ube, 1971.

69a

Charles H. Walker of Fish, Richardson & Neave to Philip-I.

Bowman of Bristol Laboratories, bearing document No. 1002,

and a letter dated Nov. 5, 1954 from Charles H. Walker to

Frederic N. Schwartz of Bristol Laboratories, bearing

document ‘No. 1059 A

6. I have examined these two letters with care.

I find nothing in either letter which supports the serious

charge made by Judge Lord. The only explanation which in my

opinion ‘can account for his remarks is a prejudice against

‘the defendants and their counsel, a prejudice of which he

himself may not be conscious but’ which is nevertheless so

deep-seated and powerful as to give rise to unjustified

Suspicions of impropriety and to cause him to assert charges

of impropriety at a meeting where Bristol was not even repre-

sented.

7. In making this affidavit it is not my intention,

nor is it Bristol's intention, to waive the attorney-client

privilege with respect to the documents in question. We ask

that Judge Lord re-examine the letters objectively and consider

whether the remarks he made with respect to them do not reveal

to him a personal prejudice against the defendants and their

counsel. )

WHEREFORE , for the reasons given above and in the

separate accompanying Joint Affidavit of Counsel, Bristol

respectfully prays that Judge Lord recuse himself from proceed-

ing further as judge in this litigation.

Sworn to before me this

70a

CERTIFICATE OF COUNSEL

MERRELL E. CLARK, IJR., JOHN FRENCH, and GORDON

BUSDICKER, being Counsel of Record for the: defendant -

Bristol-Myers Company, do hereby certify that FRANK A. SPROLE

of Bristol-Myers Company has made the attached affidavit on

the advice of counsel in the gdod faith and genuine belief

that the facts stated therein and the conclusions drawn there-

from are true. a

The aforesaid affidavit and the facts and conclusions

stated therein are based in part on information that we have

related to the affiant, and we certify our good faith and belief

ain their truth.

‘ ’ WINTHROP, STIMSON, PUTNAM & ROBERTS

re °

40 Wall Street |

New York, New York 10005

FAEGRE & BENSON

S/ JOHN D. FRENCH’

John French

S/ GORDON G. BUSDICKER

Gordon Busdicker .

1300 Northwestern Bank Building

Minneapolis, Minnesota $5402

Attorneys for Bristol-Myers Company

345 Park Avenue

New York, New York 10022

71la

UNITED STATES DISTRICT CoURT _

DISTRICT OF MINNESOTA

IN RE COORDINATED PRETRIAL : “4-71 Civ. 435

PROCEEDINGS IN ANTIBIOTIC. H ALL ACTIONS |

‘ ° |

ANTITRUST ACTIONS . :¢ |

- = =— -—-— =—=§ = = rz efenenreeee §g a

<> ae |

UNITED STATES DISTRICT COURT | _—

SOUTHERN DISTRICT OP NEW YORK

IN RE COORDINATED PRETRIAL : M-19-93A |

PROCEEDINGS IN ANTIBIOTIC - : ALL ACTIONS |

ANTITRUST ACTIONS

AFFIDAVIT

ROSS REID, being duly sworn, deposes and says:

. ' |. I am Vice President and General Counsel of

eetes Corporation ("Squibb"), a defendant in each of the.

above-captioned actions. Because of its extraordinary impor- |

tance to Squibb, I have been attentive to the progress of

this litigation, .and I make this affidavit on Squibd's behalf,

2. Squibb respectfully applies, pursuant to the

| paren Amendment to the Constitution of the United States and

28 U.S.C. Sec. 144, for this Court, the Honorable Miles w.

Lord, to recuse itself from proceeding further as Judge in

this litigatian. It is Squibb's belief that Judge Lord

possesses, and has possessed from and before his assignment —

and that another judge be assigned.

-nerein. The specific details of the facts, events and

to these cases, a strong, unshakable prejudice against the

defendants, including Squibb, which nas led him to adopt the.

mantle of prosecutor-jJudge in the conduct of pretrial pro-

ceedings. As a consequence of Judge Lord's prejudiced, ;

closed mind on the merits of the case and his becoming an

advocate for plaintiffs anda prosecutor against defendants, —

Squibb's ability to obtain the fair hearing unten 10 its

inalienable right is jeopardized.

‘3. My conclusions concerning Judge Lord's bias are

based upon ‘facts, events and observations related to me by

Squibb's counsel and upon my own review of the proceedings

observations upon which my conclusions are based are recited

in the paragraphs of the Joint affidavit of counsel sub-

mitted ...wewith, vhich I hereby refer to and incorporate

herein by referer.ce.

} |

‘WHEREP° ME, defendant Squibb demands that the

Honoravle Miles W. Lord proceed no further in these actions,

eee

Hoss Reid

Subscri:.i and s.orn to vefore

me this /j./* day of September 1971. .

pct hf beg

fe) ary u lie = ™

GRACED Carsety , 7

State of ew York ue, 45 Scene

Mad om Queens Count

CoRcats fed 9 Nw York County

Commission Expres March 30. 1972

. 7a

CERTIFICATE OF COUNSEL

| ALLEN F. MAULSBY and JOHN D. FRENCH, being -

Counsel of Record for the defendant Squibb Corporation, ~ VJ

do hereby certify that KOSS REID of Squibb: Corporation has

made the attached affidavit on the advice of counsel in the

good faith and genuine belief that the facts ‘stated therein

and the conclusions drawn therefrom are true.

The aforesaid affidavit and the facts and con-

clusions stated therein are based in part on information

that we have related to the affiant, and we certify our

good faith and belief in their truth.

kh. et ; \ v

ulsby

CRAVATH, SWAINE & MOORE

One Chase Manhattan Plaza

New York, N.Y. 10005

S/ JOHN D. FRENCH .

Jonn D. French

FAEGRE & BENSON

1309 Northwestern Bank Building

Minneapolis, Minnesota 55402..

Attorneys for Squibb Corporation

= =

74a

UNITED STATES DISTHICT COURT ~

‘DPISTRICT OF MINNESOTA

IN RE COORDINATED PRETRIAL :

4-71 Civ. 435

PROCEEDINGS IN ANTIBIOTIC’ at .

; ALL ACTIONS

ANTITRUST ACTIONS :

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK , ’

IN RE COORDINATED PRETRIAL

M-19-93A

PROCEEDINGS IN ANTIBIOTIC

‘st Bie: ALL ACTIONS

ANTITRUST ACTIONS

GERARD THOMAS, being duly sworn, deposes, and

says as follews: . .

1. I am Vice President and General Counsél

of The =apeem Company, a defendant in each of the above-

entitled actions. Having been informed on a a |

basis as to the conduct of these cases, I make this

affidavit in support of the defendants* joint motion

for the Gisqualificntion of the Honorable Miles W. Lord.

2. pursuant to 28 U.S.C. § 144 The Upjohn

Company respectfully requests that the Honorable Miles

‘W. Lord recuse himself from the present action on the

ground that he has so aligned nincel? in support of the

plaintiffs in these cases, and against the defendants,

and has so demonstrated bias and prejudice agajpnst the

dofead:' -, that hic imeedtate disqualification -from the

conduct. of 21) furtii : proceedings: In this litigation ts

essential in order to allow such proceedings to move

forward with the fairness required ed law.

3. The instant reques* is based. upon information

provided to me by defense counsel, including the information

. Set forth in the Joint affidavit of counsel ‘submitted in

Support of the defendants' Joint application fer the dis-

qualification of Judge “one, which affidavit is incorporated

herein by peferedce .

eles 43 aval mal ome

Gerard av

Subscribed and sworn to’

before me this # day

of September, 1971.

BRIER C sluels

Notary Public

cere

DISTRICT OF MINNESOTA .

ee @d@eee2eedemeoe@eeseeeees] °

: ar

IN RE COORDINATED PRETRIAL yr

° :

PROCEEDINGS IN ANTIBIOTIC &-71 Civ. 435

. ° : :

ANTITRUST ACTIONS — - QLt acTions ;

bi <:,

UNITED STATES DISTRICT CouBT |

SOUTHERN DISTRICT OF NEW YORK ie

IN RE COORDJNATED PRETRIAL abt

ee . " 4 .

PROCEEDINGS IN ANTIBIOTIC M-19-93A

. “ :

ANTITHUST ACTIONS — _ ALL ACTIONS =~

. ° : : .

ee eeeqgqeeeeeeseesee

’ ' .

CERTIFICATE OF COUNSEL '

Pena a. Oven, John D. Frerich, and Gordon G.

Busdicker, “being Counce! of Record for the defendant The

Upjomn Company, do hepety certify that Gerard Thomas of :

‘The Upfohn Company hat made the attached affidavit on the

‘advice of coun. in the 00d faith and genuine belie’ that

the facts stated herein’ and the conclusions drawn there-

. from are true. ’

_ The atoredgid affidavit and the matters stated

therein are based on Ynformation that we have m~ lated ve the

atfiant, and we certify our goad faith and belief in their °*

truth. .

coviwatow ‘ COC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.