Eli Lilly and Co. v. Marshall , 36 Tex. Sup. Ct. J. 683 ( 1993 )

ORDER ON RELATOR’S MOTION TO VACATE AND TO ENFORCE COMPLIANCE WITH THE WRIT

This matter arises out of a claim that the anti-depressant drug Prozac, manufactured by Relator Eli Lilly and Company, caused Michael Hays Biffle to commit suicide. The Biffles, plaintiffs in the underlying suit and real parties in interest in this cause, sought production of documents submitted by Lilly to the federal Food and Drug Administration, including reports of possible adverse reactions to the drug submitted by doctors to Lilly. When Judge Marshall refused to permit Lilly to redact the identities of the reporting doctors, Lilly sought mandamus. Determining that the trial court failed to consider the federal regulations and policy behind reporter confidentiality, on February 3, 1993, 850 S.W.2d 155, we held as follows:

the trial court abused its discretion by directing disclosure of the reporters’ identities without a showing of particularized relevance and need, in contravention of important congressional objectives. We therefore conditionally grant the writ and direct Judge Marshall to modify his order in accordance with this opinion. The writ will issue only should he fail to do so.

On February 9, 1993, without hearing further evidence or argument. Judge Marshall modified his October 23, 1991 order by compelling disclosure of the identity of reporters of suicide as an adverse reaction, but permitting redaction of the identities of all other reporters. Lilly has now moved this court to issue the writ of mandamus.

We had anticipated that Lilly would produce all the adverse reaction reports with all the reporters’ identities redacted, and then after the Biffles had an opportunity to review them, that Judge Marshall would preside over an additional hearing at which the Biffles would show which of the reporters’ identities they needed based on similarity between the adverse reaction described in particular reports and the facts in the Biffles’ case. This is the procedure followed by most of the courts cited in our opinion, including the court presiding over the federal multi-district litigation concerning Prozac, and in light of our having announced a new standard for evaluating disclosure of the identities, it is the procedure necessary to effect the balancing between competing interests that we drew in our opinion. All the parties should have the opportunity to present argument and proof in accordance with the standard we announced on February 3, 1993. To the extent our opinion did not make these expectations explicit, we do so now.

Accordingly, Relator’s Motion to Vacate and to Enforce Compliance with the Writ is granted in part and denied in part. We direct Judge Marshall to modify his February 9, 1993 order so that Lilly is permitted to redact all reporter identities until the Biffles have had an opportunity to review all the adverse reaction reports, at which time the Biffles may request at a hearing release of the identities of reporters based on a showing of particularized relevance and need. All other requested relief is denied.

DOGGETT, J., notes his dissent. ENOCH, J., not sitting.