Plaintiffs who have filed legal action against Benicar maker Daiichi Sankyo will not be able to compel testimony from company employees who work in the company’s European operation. That ruling came down from U.S. District Magistrate Judge Joel Schneider for the District of New Jersey at the end of September.

Benicar, a treatment for hypertension, is known to cause sprue-like enteropathy, a disorder of the intestinal tract that mimics the symptoms of celiac disease. Said symptoms include chronic diarrhea, nausea, malnutrition, dehydration and sudden weight loss. Although the drug received FDA approval in 2002, the connection was not discovered until 2013. It was then that a physician at the Mayo Clinic found that Benicar patients exhibiting symptoms failed to respond to the usual treatments, namely elimination of gluten from the diet. Patients’ symptoms did, however, ease once they were taken off Benicar.

Plaintiffs who are part of the multi-district litigation allege that executives at Daiichi Sankyo were aware of the side effects and deliberately withheld this information from physicians and patients. They had been seeking to call on two high-level executives working at Daiichi Sankyo Europe’s Clinical Safety and Pharmacovigilance Department. It turns out that the executives in question had been overseeing research into the very same side effects that are the cause of action in Benicar litigation. This means these employees have “direct complicity” in covering up information about the side effects, providing evidence that Daiichi Sankyo deliberately marketed a product it knew to be effective.

This would appear to be highly germane to the case – but the Japan-based, multinational corporate pharmaceutical giant argued that its European operation was not a party to the litigation. Under federal judicial rules, U.S. courts cannot compel testimony from foreign witnesses unless they are directly involved in the lawsuit. This was Judge Schneider’s reasoning when he said, “I don’t think the court has the authority if they’re not officers, directors or managing agents.” 

Counsel for plaintiffs argued that while Daiichi Sankyo does have separate divisions operating in different regions of the world, it remains a “global integrated organization,” i.e., a transnational corporation. As such, all employees around the world would be working together, exchanging information. The plaintiff’s attorney also pointed to two previous cases in which U.S. courts were able to compel testimony from citizens working for a foreign entity.

Nonetheless, Judge Schneider sided with the defense in this motion.

Defendant Daiichi Sankyo may have dodged a bullet for the time being – but the company still faces more than 1,700 lawsuits from plaintiffs alleging that company executive had knowledge of the dangerous side effects of Benicar. And this particular battle in the ongoing war isn’t over; plaintiff’s counsel Adam Slater has stated that they will file a separate suit against Daiichi Sankyo Europe as well.

One way or another – to quote the Bard of Avon – “the truth will out.”

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K.J. McElrath is a former history and social studies teacher who has long maintained a keen interest in legal and social issues. In addition to writing for The Ring of Fire, he is the author of two published novels: Tamanous Cooley, a darkly comic environmental twist on Dante's Inferno, and The Missionary's Wife, a story of the conflict between human nature and fundamentalist religious dogma. When not engaged in journalistic or literary pursuits, K.J. works as an entertainer and film composer.