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From the March 7th, 1995 issue of Smart Drug News [v3n10]. Copyright (c) 1995, 1997. All rights reserved.
Over the last two weeks, we have received dozens of phone calls from liquid-deprenyl customers of B&B Freight who have received a threatening letter and a questionnaire from Arthur J. Mahoney, a lawyer with the Florida law firm of Gunster, Yoakley, Valdes-Fauli & Stewart. Mr. Mahoney and his law firm represent Somerset Pharmaceuticals, makers of Eldepryl-brand deprenyl.
Mr. Mahoneys letter asserts that lawsuits have been filed against various deprenyl distributors (which includes Discovery Experimental & Development, Inc. of Wesley Chapel, Florida) but that individual consumers are not now a target of any lawsuit. Then he goes on to request that liquid-deprenyl consumers refrain from making any additional purchases and complete the enclosed information sheet (a questionnaire about past purchases). Although the letter openly acknowledges that the questionnaire is voluntary, he immediately asserts that Somerset reserves the right to compel the information through subpoena, court order, or deposition. This veiled threat is further advanced by statement that voluntary compliance will save both you and Somerset Pharmaceuticals a great deal of time and expense.
Most of our subscribers were not impressed by Mr. Mahoneys legalistic style of intimidation. Most told us that they were going to ignore the letter. Several subscribers, however, were lawyers themselves, and were personally enraged by the content of the letter. They assured us that the letter would not go unanswered. One promised that the matter would reach Congress.
This letter campaign was not the first time that CERI has dealt with Mr. Mahoneys tactics of intimidation. Early last year, Dr. Ward Dean was subpoenaed and deposed by the same law firm. Later in the year, Steven Fowkes was subpoenaed, although only for documents. The subpoena demanded all of the green response cards sent to us by readers of Smart Drugs II as well any and all documents or correspondence mentioning deprenyl, selegiline, or any of a long list of defendants in the case. Among other documents that might have been covered by the broadly worded subpoena were 1) copies of the books Smart Drugs II, Deprenyl: The Anti-Aging Drug, Stop the FDA and The Neuroendocrine Theory of Aging and Degenerative Disease, 2) numerous back issues of Smart Drug News, 3) photocopies of scientific papers on deprenyl in our possession, 4) copies of all correspondence written to or by us dealing with deprenyl, and 5) CERIs Sources Listing. Although queried about the specific scope of the subpoena regarding each of these items, Mr. Mahoney has failed to respond to our certified letters. He has also failed to address numerous basic questions about the legality of what he was attempting. We can only conclude that Mr. Mahoney was (and apparently still is) desperately fumbling in the dark in a frantic effort to keep Somersets position in the deprenyl market from eroding by competition from a superior product.
As far as we have been able to determine, Discoverys counter-suit against Somerset alleges that Somerset and the FDA conspired to block the approval of Discoverys liquid deprenyl. This allegation takes on added significance with the realization that the only way that Somerset could have obtained the names and addresses of B&Bs customers who purchased Discoverys liquid deprenyl is through the FDA. B&B was raided by the FDA almost two years ago, and their customer mailing list was one of the items seized. We know that this list is the one used by Mr. Mahoney because B&Bs clients who started purchasing deprenyl after the raid have not received letters. In addition, it now appears that his law firm had improper access to the FDA-seized B&B documents.
The judge in the case (Magistrate Charles R. Wilson) granted Somersets lawyers limited access to the FDA-seized documents from Discovery (which were being stored with documents from B&B Freight, and several other companies and individuals). He specifically granted access to Discoverys documents and prohibited access to B&B Freight and any other documents. He said, Plaintiffs subsequent review of the documents is limited to those documents responsive to Plaintiffs request for production (i.e., only Discoverys documents). Furthermore, Mahoney 1) openly acknowledged this limitation (that the judge had only allowed us very limited access to the San Diego documents) and 2) agreed to keep the documents confidential until they were reviewed by the defendants, before any of these documents would be put into evidence or used in any way. Just to make it perfectly clear, the judge asked Mahoney, So you have agreed to keep confidential those documents? Mr. Mahoney replied, From day one.
Given that Mr. Mahoneys associates photocopied B&B Freights customer list, and then sent out a threatening letter prior to review, it now seems clear that Mr. Mahoney violated the intent of the court order and blatantly lied to the court. It remains to be seen whether the court will sanction him for such conduct.
These deplorable tactics, conducted in the name of Somerset Pharmaceuticals, now lead us to revoke our previous recommendation of Eldepryl-brand deprenyl. Whatever marginal inferiority the Eldepryl tablets might have in relation to Discoverys liquid deprenyl, the careless and threatening actions of the companys legal representatives are professionally irresponsible and ethically unacceptable.
The sleazy tactics and spurious arguments advanced by Somersets lawyer during Dr. Deans deposition led Dr. Dean to assure the lawyer, under oath, that he would be forthwith ending his prior practice of recommending Eldepryl-brand deprenyl for his patients.
We must concur with Dr. Dean. From now on, we will recommend Discoverys liquid deprenyl to discriminating consumers. The legal and regulatory endorsement of Eldepryl-brand deprenyl by FDA is scientifically and medically irrelevant.
Should any Smart Drug News subscribers receive any more threatening letters from Mr. Mahoney or any of his cohorts, please forward them to us immediately.