Drug giant Pfizer Inc. says Brigham Young University officials have engaged in a media offensive that has tainted the potential jury pool for their upcoming trial over whether the Utah school is owed billions of dollars for its role in creating the wildly profitable anti-pain drug Celebrex.
Pfizer has filed an emergency motion to move the scheduled eight-week jury trial set to begin in federal court in Salt Lake City on May 29. Comments by a BYU attorney and Professor Daniel Simmons to local news media outlets have made it impossible to seat an impartial jury in Utah, Pfizer said in a motion filed Thursday.
The trial pitting BYU and Pfizer is set to start May 29 and last for eight weeks before U.S. District Judge Ted Stewart in federal court in Salt Lake City.
The motion has thrown open the issue of religion in what potentially could be the largest civil case ever in Utah. BYU is owned by The Church of Jesus Christ of Latter-day Saints, and about 60 percent of Utahns are members of the faith, so any jury pool is highly likely to contain adherents.
"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," Pfizer said in a court document. "Every major broadcast television station has now aired (or will air today) a story sponsored by BYU."
The New York-based drug company is asking U.S. District Judge Ted Stewart to move the trial to either New York or Missouri, where Monsanto first engaged Simmons about his discoveries and started development of what became Celebrex. Monsanto eventually came under the control of Pfizer.
BYU claims that Monsanto violated an agreement with Simmons and failed to credit him for an important discovery that led to the creation of Celebrex, which is an alternative to aspirin and other similar pain medications. Pfizer says Simmons’ work did not contribute to the development of the drug that has earned the company perhaps $35 billion in sales, according to court documents.
A Pfizer spokesman declined comment on the motion, and an attorney for BYU indicated a response might be issued later Friday.
The lawsuit, filed in 2006, says that around 1990 Simmons discovered an enzyme called Cox-2 that could reduce inflammation, and therefore pain, without the negative side effects of aspirin that occur when taken in large enough doses over long periods.
Simmons brought the discovery to Monsanto and entered into an agreement for further research, but BYU claims Monsanto wrongfully canceled the accord and misappropriated Simmons’ research to develop Celebrex. BYU claims it is owed more than $9 billion in royalties and perhaps more.
Pfizer, which came into possession of Monsanto in 2003, said Simmons’ work was not a key to development of Celebrex and contends it doesn’t owe BYU any royalties.
BYU also has brought the issue of religious affiliation into the lawsuit. It filed a motion recently asking the judge to prohibit one of Pfizer’s local attorneys, Brent Hatch, from mentioning during the trial that he is a graduate of BYU and an LDS Church member.
Such mention should not be allowed "because of the danger of unfair prejudice, confusion of the issues and potential to mislead the jury," BYU’s attorneys told the court.
Hatch said in a letter to BYU’s local counsel, Jim Jardine, that although Pfizer had no intention of mentioning his affiliations, it would not agree to the prohibition "without knowing how BYU plans to present its lawyers, witnesses, and other matters at trial."
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