Regrettably, plaintiff Brigham Young University and its lawyers, in an effort to press every advantage, have intentionally acted to thwart that goal. —Brent O. Hatch, attorney
SALT LAKE CITY — Pharmaceutical giant Pfizer is accusing BYU of tainting the jury pool for an upcoming multibillion dollar trial over the drug Celebrex by taking its side of the story to the media.
Pfizer says BYU "went on the offensive" Wednesday when its lawyers made "inflammatory and prejudicial" statements to local broadcasts outlets, three of which aired stories. It asked a federal judge Friday to postpone the trial or move it to New York or Missouri.
"As the court already recognized and informed the lawyers for both parties, this is a particularly difficult one for seating an unbiased jury," wrote Pfizer's Salt Lake-based attorney, Brent O. Hatch.
"Regrettably, plaintiff Brigham Young University and its lawyers, in an effort to press every advantage, have intentionally acted to thwart that goal."
David Thomas, BYU deputy general counsel, said Pfizer's motion has no basis in fact or law, and notes that both sides have provided comments and responses to the media over the years.
"BYU believes that it is appropriate and fair for both parties to communicate with the media to ensure the accuracy of coverage. BYU does not believe that any news story or any statement of either party has or is likely to prejudice a potential jury," he said in a statement.
Last week, Hatch and a Pfizer representative from the company's New York headquarters also met with local media to tell the company's side of the story. The meetings were for background only.
BYU and Pfizer are locked into a bitter six-year court battle over the discovery of an enzyme that led to the development of Celebrex, a revolutionary drug to treat arthritis and inflammation. An eight-week jury try is scheduled to begin May 29 in U.S. District Court in Salt Lake City.
Three TV stations — KUTV, KTVX and FOX 13 — aired stories after BYU lawyers arranged to meet with them this week. KSL and the Deseret News met with the lawyers as well but opted not to run stories.
But Pfizer contends BYU's "coordinated press campaign" includes a March 9 story on KSL and in the Deseret News following a court hearing in the case. Its change of venue motion points out that The Church of Jesus Christ of Latter-day Saints owns KSL and BYU.
"Whatever hope there may have been of obtaining jurors who, despite potential ties to important local institutions such as BYU or the LDS Church, could be impartial, BYU has now willfully made that task impossible," wrote Hatch, whose undergraduate degree came from BYU.
In October 2006, BYU and chemist Daniel Simmons sued Pfizer, claiming the drug giant unfairly profited from his work and cheated the professor out of professional credit and compensation.
Celebrex sales have topped $35 billion since going on the market in 1999. BYU contends it deserves "reasonable royalties" of 15 percent or $9.7 billion. The figure could stretch into the tens of billions of dollars if BYU also seeks compensation for profit margin, interest and future sales.
The so-called “super-aspirin” blocks the COX-2 enzyme, reducing pain and inflammation without triggering the sometimes deadly gastrointestinal effects of some other non-steroidal anti-inflammatory drugs, including aspirin. COX is scientific shorthand for the enzyme cyclooxygenase.
For seven months in 1991 and 1992, Simmons and BYU had a research agreement with Monsanto, which was later acquired by Pfizer.
According to BYU, Simmons' research about the COX-2 enzyme was critical in the development of Celebrex, yet Monsanto ended the agreement, without including him or the university in the credit or compensation.
Pfizer claims it met all of its obligations under the agreement. It says the lawsuit has no merit and that BYU and Simmons have made unfounded allegations against the company in an effort to capitalize on its commercial success.