— Alison Frankel writes the On the Case blog for Thomson Reuters News & Insight (). The views expressed are her own. —
By Alison Frankel
NEW YORK, Nov 17 (Reuters) - Journalists and public interest groups have known for years that the U.S. government can be a rich source of information for those who have the tenacity to file — and occasionally litigate — Freedom of Information Act requests. Traditionally it’s much less common for private lawyers to rely on FOIA; they’re more likely to skip the bureaucratic hassles and demand discovery directly from the other side.
But not always. I told you last month about Lieff Cabraser Heimann & Bernstein’s tactic of suing the Justice Department for FOIA violations in order to obtain information in private antitrust follow-ons to DOJ price-fixing investigations. Lieff Cabraser has filed three FOIA suits against Justice, and twice the litigation has led to document production (though in one of those instances, it was the defendants who were ordered to cough up the discovery).
On Wednesday, a lawyer for 15 U.S. plaintiffs who claim they suffered birth defects because their mothers took the morning-sickness drug Thalidomide sued the U.S. Department of Health and Human Services for FOIA violations. The nine-page complaint, filed in the U.S. District Court for the Western District of Texas, asserts that the Food and Drug Administration (part of HHS) has improperly failed to turn over documents the lawyer, Kay Reeves of Gordon & Reeves, began requesting more than a year ago. According to the complaint, the government has informed Reeves that some of the materials — which relate to a Thalidomide clinical trial conducted in the United States more than 50 years ago — are in the National Archives and processing the FOIA request will take as long as 18 months. (I left a message requesting comment at the FDA, but didn’t hear back.)
The plaintiffs, most of whom have suffered birth defects on only one side of their bodies, assert that new evidence of Thalidomide’s effects, uncovered via the drug’s rebirth as a cancer treatment, suggests that their injuries could have been caused by Thalidomide. (It was previously believed that the drug caused only bilateral defects.) The alleged victims also claim that Thalidomide was more widely prescribed in the United States than was previously thought.
The plaintiffs may need to get hold of the FDA records to keep their case alive, said Nick Styant-Browne of Hagens Berman, which is co-lead on the Thalidomide suit with Gordon & Reeves. “Eventually this is information we can obtain from the defendants, but that’s a long way off,” he said. The defendants, led by GlaxoSmithKline , have already indicated plans to move to dismiss the personal injury suit on statute of limitations, jurisdictional, and other grounds, according to Styant-Browne. Those dismissal motions, he said, could come before the plaintiffs are granted discovery, so getting the FDA records that link his clients to Thalidomide is crucial. “At a minimum, we’ve been trying to get the list of doctors, identifying those who gave the drug to pregnant women,” he said. “That’s basic information. People need to be able to confirm a link to their injuries.”
One complication, Styant-Browne said, may be that some of the documents were apparently designated as confidential decades ago, before the Freedom of Information law was even enacted. “That may be playing into the FDA decision,” he said.
Hagens Berman, he added, has filed FOIA suits in other cases, but never in circumstances like this. “This case is kind of poignant,” Styant-Browne said. “It’s not like we’re asking for financial information. This goes right to the heart of our clients’ lives. It’s sad they’ve been driven to file this suit as a last resort.”
Glaxo counsel Michael Scott of Reed Smith declined to comment on the FOIA suit.
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