Are We in Hell?
February 20, 2014:The hearing was this morning and was over in about an hour.The defendants (the lawyers for the pharmaceuticals) first presented their arguments to Magistrate Judge Noel. They had three arguments.The first was that I (Mr. Locatelli) was writing a book and had inquired on the Net about finding a publisher, in addition to posting videos on You Tube.Somehow, in their thinking, this fact made it more likely that Mary would disclose the amount of the settlement without the total gag order being enforced on her by the court.I couldn’t see the logic behind this argument and Judge Noel also seemed skeptical.Judge Noel ask if I was a party to the lawsuit and when the defendants replied that I was not, he ask why then was I not free to publish what I wanted to.They didn’t have a good answer, but they stressed that Mary had to be prevented from helping in anyway with my book so as to keep the amount of the settlement confidential.
Thompson countered this argument by noting that Mr. Locatelli and his wife had been all along helping their daughter financially, emotionally and also with the lawsuit.He stated that Mr. Locatelli had attended all the hearings and was privy to firsthand knowledge of all events related to the lawsuit and his daughter’s reactions to Mirapex.In other words, I could write my book without any help from Mary and that totally gagging her would not change that fact.I have been very careful in not having Mary help in anyway with my book.Mary has not read or even seen it in any form and she has had nothing to do with the videos that I have posted to the Net.
Their second argument was that Mary would not be prevented from telling her story “around the kitchen table” to her daughter even if a total gag order was imposed by the courts as the pharmaceuticals wanted.Thompson countered however that Mary would not be protected from a lawsuit if she did tell her daughter and would also be open to a lawsuit if her daughter retold that story later in life.Mary needed the freedom to own the rights to her own story without fear of recrimination.He also questioned the term “disparage” in the disparagement clause as being too vague a term to be imposed on Mary in any legal order from the court.
Their third argument almost made me gag in its blatant disingenuous.They argued that Mary and the pharmaceuticals would be better off if a total gag order was imposed on Mary so as to bring peace to both of them once and for all.I understand that from the pharmaceutical’s point of view they would more likely have more peace if Mary couldn’t tell her story and warn others about the dangers of Mirapex.Arguing that Mary would be better off not being able to tell her story was unbelievable.I couldn’t see their lawyer say this, but how could anyone tell such a lie and keep a straight face. That shows the type of lawyers that work for the pharmaceuticals.
Judge Noel also seemed skeptical of this argument.He asked their lawyers why not the release that Mary had already signed been sufficient to bring legal peace to the pharmaceuticals.He made the point that it had freed them from this and all future lawsuits brought by Mary due to her side effects from Mirapex.The function of the court in these matters was to settle lawsuits according to the law and not protect the pharmaceuticals from unwanted publicity.
Thompson also restated his prior arguments about the merits of their motion as a Summary Judgment and asked that their motion be dismissed, and that Mary be paid the settlement amount as previously determined by the court.We had a phone connection directly into the courtroom and could plainly hear all the conversations happening there.Apparently the lawyers for the pharmaceuticals didn’t know the connection was still in place after Judge Noel left.We heard one of their female lawyers plaintively remark to one of the other lawyers “but they always sign the whole release”.
Now we have to wait for Judge Noel’s recommendation and then District Judge Davis has to rule on that recommendation.His ruling can only be appealed to the District court where Lee cannot practice.I suppose that Judge Noel could sidestep the bigger issue of how much “gagging’ is necessary to keep the amount of the settlement secret and narrowly rule that the defendant’s motion does not meet the requirement of a summary judgment.Where that would leave Mary legally I’m not sure.I’m just going to try to get on with my life as best I can.
March 15:Lee is starting to get anxious as he hasn’t heard anything from the court, so he asked Mary to check with Judge Noel’s clerk. Mary was told today that a recommendation should be forthcoming before the end of the month.Today I worked with Joe on the vent part of the plumbing in their basement.I’ll sure be glad when the weather warms up and so does their basement.
April 1:April Fool’s Day and we are still waiting for a verdict from Magistrate Judge Noel.Anyone that has had to wait for a life-changing decision knows how the wait is sometimes almost unbearable and the worries keep creeping into consciousness.The thoughts are like a toothache that can recede into the background only to strike with full force when least expected.
Mary and Joe and Julia are making the most of their little cabin perched on the bigger basement in progress.They have a cozy, but tiny front room that would have a nice view of the lake except for the old not-insulated sliding glass door and the required warmth- trapping drapes covering it. The cabin’s flat roof has a two foot overhang on the side facing the lake.The flower cooler in our now debunk flower shop had two very nice insulated sliding glass doors that Joe and I are installing in a wall we built out under those eaves.When we are done this will add about two feet to their front room.This doesn’t seem like much, but it will increase their front room size by about 20% and give them a lake view---and---insulated windows.
April 4, 2014:I should be checking PACER to see if the decision is posted in the court records, but I’m too nervous.I must be getting old.
April 7:Mary has received an email from Lee telling her that a decision has been posted and that he feels that it is unlikely to be overturned by the District Judge Davis.The ruling now posted is from the Magistrate Judge Noel, but to be finalized as an order that Mary and the defendants have to follow it needs to be signed by District Judge Davis.Each party (Mary and the pharmaceuticals) have until April 17 to file objections to the report.If there are any objections then Judge Davis will be the final decider. Here is Judge Noel’s reasoning behind his ruling in his own words.
“In August 2013, this Court granted Defendants’ motion to enforce the parties 2012 settlement agreement. However, no final judgment was entered. In order to effectuate the parties agreement, Defendants sought Plaintiffs’ signatures on a written release that incorporated all material terms of the settlement agreement. Plaintiffs signed the release, but crossed out certain provisions relating to confidentiality and non-disparagement.
Plaintiffs argue that the provisions they object to violate their First Amendment right to free speech. Defendants contend that all material terms of the settlement should be enforced by this Court based on its inherent authority and the parties course of dealing. Plaintiffs maintain that the record does not reflect an agreement on the provisions at issue.
This Court has acknowledged that confidentiality is a material term of the settlement
agreements arising out of the multi-district Mirapex litigation. For example, this Court’s August 2012 report and recommendation stated that “[t]he settlement amounts are confidential” and “[t]he terms of every settlement agreement in this Mirapex Multi-District Litigation have been made confidential” and “ the terms of the settlement agreement shall remain confidential.”This Court has not, however, had reason to opine on all material terms of the settlement agreements. Specifically, this Court has not had reason to consider whether any communication, publication or other statement made by the Plaintiffs in this case might disparage the Defendants—or whether such a non-disparagement provision is appropriately included in an order enforcing the settlement. As reflected in the attached proposed order, this Court recommends omitting the non-disparagement language.”
The Judge then includes the following language in the order to be signed by District Judge Davis:
1. Plaintiffs Mary Magalhaes and Joseph Magalhaes, and each of them, have fully, finally and forever released and discharged Boehringer Ingelheim Pharmaceuticals, Inc, Boehringer Ingelheim International GmbH, Boehringer Ingelheim GmbH, Pfizer, Inc., Pharmacia Corporation, the Upjohn Company, Pharmacia & Upjohn LLC and Pharmacia & Upjohn Company LLC, and their respective predecessors and successors in interest, former, present and future subsidiaries, divisions, parents, predecessors, successors and affiliated companies, and each of their respective present and former officers, directors, employees, shareholders, successors, partners, agents, representatives, suppliers, distributors, customers, insurers, assigns, servants, attorneys, assignees, heirs, and executors, and each of them, from any and all claims, actions, causes of action, demands, damages or liabilities of any nature whatsoever (whether contingent, accrued, mature, direct, derivative, subrogated, personal, assigned, discovered, undiscovered, inchoate, or otherwise) which Plaintiffs ever had, now have or hereafter can, shall or may have in the future arising out of, relating to, resulting from, or in any way connected with Mirapex and/or the allegations contained in Plaintiffs’ complaint, regardless of whether such claims, actions, causes of action, demands or liabilities are currently known or unknown to Plaintiffs.
2. Plaintiffs, their agents and their counsel shall keep confidential the amount of the settlement, the facts and circumstances giving rise to the action and/or the amounts discussed during settlement negotiations. The parties and/or their counsel may, however, make disclosure of the settlement amount received by Plaintiffs to any applicable care or medical lien holder, the Internal Revenue Service or as otherwise required by law, or to Plaintiffs’ accountants, trustees and/or other retained advisors who shall, however, upon such disclosure, agree in writing to maintain and honor the confidentiality of such information; provided, that Plaintiffs and their counsel shall first provide immediate notice of such request or action to Defendants’ counsel such that Defendants may seek a
protective order that will not be opposed by Plaintiffs and their counsel. If inquiry is made by any third person concerning the status of Plaintiffs’ action, the parties and/or their respective counsel shall respond only that the action has been resolved.
3. Within seven (7) calendar days from the date of this Order, Defendants shall deliver to counsel for Plaintiffs settlement checks payable to “Mary Magalhaes and Joseph Magalhaes, individually and as husband and wife, and H. Lee Thompson, their attorney” in the aggregate amount of the settlement demand made by Plaintiffs on March 2, 2012 and accepted by Defendants thereafter. At the same time, Defendants shall also notify the Court and all counsel via e-mail that their share of the aggregate settlement proceeds have been delivered to Plaintiffs’ counsel.
Once Judge Davis signs the order and dates it then the defendants a.k.a. the pharmaceuticals will have to pay Mary and Joe---and----this marathon legal disaster will be over---finally.
April 8:Now that I’ve calmed down enough to read the report again and start thinking in a clear way, I’ve realized the following. The defendants probably think that they have won, or at least won enough to not file any objections.They now have had the court do their dirty work by gagging Mary for them. I do not in any way agree with the Judge’s ruling that forbids Mary to talk about the “facts and circumstances giving rise to the action” (the lawsuit). This is a giveaway to the pharmaceuticals as it stops Mary telling about her experiences with Mirapex in addition to the settlement amount. I can’t see how stopping Mary from telling about Mirapex is any concern of the courts.In addition the pharmaceuticals will get a protective order that is legally enforceable by a Federal Court and violation of it can subject Mary to contempt of court, fines and possible confinement.
However, and this is an enormous “however”. The judge did insist on leaving in “the facts and circumstances giving rise to the action”, but word “action” here is singular and must refer to the onetime filing of the lawsuit by Mary. Then the phrase “the facts and circumstances giving rise to the action” would bar Mary from telling her story from the time she took Mirapex to the filing of the lawsuit. But the struck out “disparagement clause” would allow her to tell how life has been post Mirapex, including the trauma of the lawsuit and how her life has changed for the worse from what it had been pre-Mirapex. She could also tell about the post Mirapex effect on people around her and even push for better warnings on Mirapex. She could tell about the trauma of others she met. She can “disparage” the drug Mirapex; tell about its side effects and the behavior of the pharms all she wants as long as she doesn’t tell the specifics of her personal Mirapex experience.
Perhaps the joke is on the defendants and the court, but they do not know it yet. Their lawyers could not have worked harder to make themselves and the pharms look unfair, cruel and uncaring---and---the court, by insisting on a non-necessary gag order, looks to be in the pocket of the pharms. Not a pretty picture.
In addition, Mary would not be very good at telling what happened to her on Mirapex as she can’t remember most of it. It came out in the hearing that as long as I wrote from my own first hand experiences about what happened and was not a party to the lawsuit, then I can say and publish what I want. I was very careful to not get help from Mary in any way, but I didn’t need her help as I was privy to everything that occurred in the lawsuit, to Mary on Mirapex, and the settlement conference with Mary and her husband. I’m free to tell the story better than Mary could have told it and—I have.
Also, and this is very important, because the court did not make Mary sign the standard 19 page settlement she is insulated from punitive action from the pharms unless she slanders or libels them. The punitive action has to come from the Federal Court and they would only act if Mary violated the court order and not simply to scare and harass Mary as the pharms would have. Mary’s story can and will be told---and----Mary can talk about Mirapex and the change it caused in her life and the damage it caused in other people’s lives.
We have to decide if we want to file objections to Judge Noel’s ruling.We don’t think that this is wise.If we get the “facts and circumstances” language removed (though Lee does not think that Davis would be amenable to that) then the defendants would probably appeal to the District Court where Lee cannot practice.This is too big a risk.If the defendants don’t object to the recommendation of Judge Noel we will let it slide.
April 14: All of us were just beginning to calm down and realize that it’s over when the pharmaceuticals dropped another bombshell on us.Lee just forwarded an email from the defendants that AGAIN contained the complete 19 page release for Mary and Joe to sign.This release omitted the “disparage clause” but contained all the language that would make Mary and Joe easy targets for harassment lawsuits from the pharmaceuticals.It would also make them responsible for paying all the lawyer costs including the costs of the defendant’s lawyers.Do they think we are that stupid or have I died and descended into Hell along with them?
April 15:Lee has just sent a letter to Judge Davis and Noel.Here is the part about the 19 page release:
“Plaintiffs also request a telephone conference regarding the presentment of releases for their signature before payment of the settlement.Defendant’s attorney Maria Nida sent to plaintiffs’ attorney a nineteen page release for BIPI and Pfizer requesting my signature and plaintiffs’ signatures.Plaintiffs assert that the defendants by and through Attorney Maria Nida are not abiding by the Report and Recommendations and the attached Order.
Plaintiffs’ council has attempted to communicate by telephone by calling Attorney Arthur Liderman and Attorney Maria Nida, on April 14, 2014, and have requested by email whether the Defendants are requiring the release to be signed by the Plaintiffs and Plaintiffs’ council.Plaintiffs believe that this requirement is in conflict and not in compliance with the proposed order attached to the Report and Recommendation of Magistrate Noel.”
April 17: Great news for once!!! I just sent off the following email to Mary. “The defendants have given up on the notion of having the complete 19 page release signed---and----will fork over the money as soon as Davis signs the order----You are probably the first person in the history of litigation against the pharms that settled without signing the complete 19 page release!!!See the attached filing from them---I guess they knew that they had no legal standing to press forward once they knew you didn’t fall for signing---.”
The pharmaceuticals have finally given in on requiring the signing of the full 19 page release.I won’t bore you with their recent filing, but it was a “lame” try at covering their butts and avoiding sanctions from the Judge.
April 20:Mary could have requested Lee to see if the defendants would pay an additional amount for her and Joe to sign the original full release, but Mary is more determined now than ever to get her story out.Finally--- it might-----just might be over!
I have just one last note to write for this chapter.There may be some legal precedent set by the Judge’s ruling concerning what is reasonable for the pharmaceuticals to require in their releases.If there is one I’ll let the legal scholars argue about that.