This is from the middle of Covington & Burling’s April 25, 2008 response to Congress, on behalf of Schering-Plough, among others. [The opening, and back-end, of that seven pager appears here, tinted in green. I posted it last night. This later snippet is the one you need to see, though — I posted it after this one, on the 21st.]
First, note how generally non-responsive these “responses” are. Now, note particularly that there is no explanation as to why, in answer to Question Number 7, Dr. Bots’ January 2007 report — a report that concluded the “data were fine” — was not shared with the newly “ENHANCED”, November 2007 “independent expert” panel. And, note especially, here — that was a conclusion reached, almost a full year earlier — than when the November 2007 “new” panel finally was convened.
This is going to turn out to be significant in the now ongoing litigation, in my opinion. This “selective sharing of information” is troubling — note also (in Response Number 8) the admission that Schering-Plough people prepared all the slide decks (do go look at those slides [at about the middle of that 70-page PDF]). That admission, in Response Number 8, may easily, and fairly, I think, be read as an attempt to predispose the November 2007 expert panel to ignore, or at least, discount, Dr. Bots’ views. To “shade” what was already known, to be another, greener, hue (thus my tinting of these letter pages). As ever, click to enlarge:
As is often true when lawyers write letters on behalf of clients, what is not said — what is left unwritten — is far more important than what is said. The object-goal of the Congressional Committees’ Question Number 7 is, in my opinion, to determine what information was, and was not, shared with the Novemebr 2007 panel — it was already known by the Committees that Dr. Bots’ report was not provided. And, perhaps surprisingly, Covington & Burling stepped right into it, here.
What Covington & Burling, and its client, Schering-Plough, did not do, was explain why such an important “piece of the ENHANCE puzzle” was not shared with the panel. To then immediately (and gratuitously) suggest that the panel “had the full benefit” of Dr. Bots’ views — simply because he attended the Novemebr 2007 panel session, is to answer a question not asked — to answer far more than the firm, probably, ought to have answered.
It suggests, to my eye, a sense of defensiveness. It suggests, at a minimum, that there was very careful advance planning surrounding how much — and how little — to share with the November 2007 panel. And, given what we now know about the “ex post facto minutes” — it suggests an agenda, going in, to move toward a change of end-points (and thus, additional delay) — all in my opinion, of course.
And honestly, that smells, smells like a wharf-house — at low tide — and that is not just my opinion. That is a fact.