Judge orders Pfizer to pay BYU $852K for suit delays

Published: Thursday, Oct. 29 2009 12:00 a.m. MDT

A federal magistrate judge on Wednesday penalized the pharmaceutical giant Pfizer for causing unnecessary delays in a $1 billion lawsuit brought by Brigham Young University.

U.S. Magistrate Judge Brooke Wells ordered the company to pay $852,315 for various costs including attorney's fees because Wells determined that Pfizer had caused repeated delays in the suit that was filed in 2006.

BYU alleged in its suit that the drug company profited by billions from the drug Celebrex, which the school contends was created using research conducted by BYU researcher Daniel Simmons. The school contends that it and Simmons have been cheated of professional credit for Simmons' discovery of an important enzyme as well as financial benefits from the popular drug.

The two sides have not been able to agree on a resolution to the continuing dispute.

Wells sanctioned Pfizer primarily over delays in producing "discovery," or evidence that one side holds that must be produced if the other side requests it in litigation.

"While the court understands there may be some delay in producing discovery, Pfizer did not represent to the court that its production would be a long slow rolling production," Wells wrote in the opinion. "In the court's view the record reveals that Pfizer's conduct has not risen to a level of willful and intentional disobedience. But, Pfizer's production has been negligent to the point that it closely approaches a finding of bad faith."

BYU had asked for an even stiffer sanction with higher fees awarded to the school.

BYU and biochemistry professor Simmons filed suit claiming that Simmons had discovered the COX-2 enzyme and entered into a contract with Monsanto, which later became part of Pfizer. The plan was to develop an anti-inflammatory medicine that blocks the enzyme in order to reduce pain and swelling but does not upset the stomach the way some drugs do, according to BYU officials.

BYU contends it was told that it did not need to get patents and that Monsanto would inform the university if anything marketable resulted from the research.

BYU's suit claims that instead of living up to the agreement, a Monsanto employee took credit for Simmons' work, the company terminated the contract "under fraudulent pretenses," and the firm ended up with a "blockbuster" drug that turned out to be highly effective medically as well as extremely profitable.

BYU said in its suit that it tried repeatedly to get the patents from which it was excluded changed, but to no avail. A BYU spokesman also said that the school had worked for years to reach some kind of an agreement before heading to court.

For its part, a Pfizer spokesman has said that Simmons "played no role in the discovery of Celebrex" and that the allegations in the lawsuit were "baseless."

e-mail: lindat@desnews.com

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