# Appendix — Pfizer Inc. v. Lord > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0727%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 406 U.S. 976 ## Text la 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. 2a 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 id 3a 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. 4a 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 - 5a 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 | ‘ t * 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). 7a 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. Ya 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. ‘ V. 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 i 7) . . 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 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 # ee 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 ee One Chase Manhattan Plaz New York, New York Attorneys for Squibb Ine. a ae COVINGTOR -& BURLING. ae ; « Way { : .. ( . w Lal fy Ss E ft 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 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 i | {ij | | i {| I, hi | II | iT } | 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. iH ij 1} 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. \ 5 \ 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 at 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). «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 a , 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 : ee ee | , . -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) é (! «@ “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. . : . €, 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. | | | | 4 H i 4 7 Subseribed and sworn to |, before me this ' day | of September, 1971. | | | { i 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 1 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 ‘© assume the role of a prosecutor and edvocate for the plain- 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 el 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’ By John French S/ GORDON G. BUSDICKER By 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 ! e 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. ne } | ‘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 J . 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 a ’ ' . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0727%3A2. Public record. Not legal advice.