Products Liability Law Reporter

A federal district court denied plaintiffs’ motion to quash a subpoena for a decedent’s employment records served by Merck & Co. in a case brought by the family of a man who died by suicide while using the drug Propecia.

John Pfaff, who used Merck & Co.’s prescription drug Propecia, died by suicide in 2013. His wife, on behalf of herself, her children, and the family trust, sued Merck, alleging liability for Pfaff’s suicide. During discovery, Merck notified the plaintiffs of its intention to serve a document subpoena on Trace3, Inc., the company of which Pfaff was president until shortly before his death. The plaintiffs moved to quash the subpoena.

Denying the motion, the district court rejected the plaintiffs’ argument that the defendant’s subpoena was seeking irrelevant information. The documents that the defendant seeks relate to the parties’ claims and defenses, the court said. For instance, Trace3’s records relate to Pfaff’s employment, including his performance reviews, and may clarify his state of mind while employed and how his mental health status may have changed while he was taking Propecia. Moreover, the Trace3 records may explain whether Pfaff had been under stress or experiencing health or financial difficulties, the court said, adding that any factor that may have contributed to his suicide is relevant information.

The court also rejected the plaintiffs’ argument that the disclosure of Pfaff’s employment records violates his right of privacy under California law. Citing case law, the court found it arguable whether Pfaff’s right to privacy survived his death; nevertheless, even if the right did survive, the court said, such a right is not absolute and must be balanced against the need for disclosure. The plaintiffs may file a protective order to prohibit the defense from using the discovery it obtains from Trace3 outside of the litigation here, however.

Finding that the plaintiffs lacked standing to oppose the subpoena based on the assertions that complying with the subpoena will be unduly burdensome or that the documents may disclose Trace3’s confidential information, the court denied the plaintiffs’ motion and ruled for the defense.

Citation: Pfaff v. Merck & Co., Inc., 2020 WL 5760478 (N.D. Cal. Sept. 28, 2020).