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One of the world’s largest pharmaceutical companies has gone to court to get Morrison & Foerster booted off a fierce patent fight over what researchers believe could be one of the most promising — and lucrative — medical products in history. Pharmacia Corp.’s motion in Rochester, N.Y., federal court seeks to disqualify Morrison as lead plaintiffs counsel by claiming that the San Francisco firm — which represents the University of Rochester — has served as counsel for Pharmacia on several matters for more than 10 years. “The ethical rules in these circumstances are absolute; lawyers are simply not permitted to file lawsuits against existing clients,” Pharmacia’s attorneys wrote in their disqualification motion. Morrison & Foerster, they added, “cannot drop a client like a ‘hot potato’ in order to assume a presumably more lucrative representation of a new client.” Morrison lawyers responded Friday by filing papers accusing Pharmacia of engaging in “litigation hardball” and calling its conflict allegations “litigation-inspired fantasy.” “Suffice it to say that Pharmacia’s claim that it . . . has a longstanding, continuing relationship with Morrison & Foerster is fiction,” Morrison partner Gerald Dodson of Palo Alto, Calif., wrote in court documents. Dodson even took a polygraph test last month to try to put the issue to rest. In University of Rochester v. G.D. Searle & Co. Inc., 00-CV-6161 L(B), the university is seeking to protect its patent right to Cox-2 inhibitors, so-called “super aspirin” used to alleviate arthritis pain and believed helpful in treating Alzheimer’s disease and some forms of cancer. Specifically, G.D. Searle — the pharmaceutical division of Monsanto Co., which recently became part of Peapack, N.J.-based Pharmacia — is accused of infringing on the university’s four-month-old patent by selling Celebrex, the first Cox-2 inhibitor drug to reach the marketplace. The financial stakes are high. Celebrex had sales of $1.5 billion in 1999, its first year on the market, and experts estimate that the value of Celebrex — which has already surpassed Viagra as the fastest-selling drug in history — and other Cox-2 inhibitors will soar to unprecedented heights. “From every assessment, this would probably be the single most important piece of litigation in the university’s history,” Terrance O’Grady, associate counsel for the University of Rochester Medical Center, said Monday. “The market for that drug is supposed to go up to about $20 billion a year for the next 10 years.” The take for the firm won’t be too shabby either. “The fees will be substantial,” Dodson said last week, “into the millions.” Pharmacia, whose lead counsel is Chicago’s Sidley & Austin, contends that Morrison & Foerster has represented Pharmacia on “a variety of different matters” since 1989. In particular, Sidley lawyers say, the firm signed on last year to defend Pharmacia & Upjohn Inc. — which merged with Monsanto on April 3 to form Pharmacia — in a Proposition 65 toxic labeling case. The San Francisco Superior Court suit — Dowhal v. SmithKline Beecham Consumer Healthcare, 305893 — claims that Nicorette gum, manufactured by Pharmacia & Upjohn and marketed by SmithKline, was improperly labeled. Morrison still represents the merged entity, Sidley lawyers contend, and tried to protect itself by getting Pharmacia lawyers to sign a conflicts waiver — letting Morrison take positions adverse to Pharmacia — only eight days before filing the Rochester suit. “The engagement letter,” Sidley lawyers wrote, “did not disclose that Morrison & Foerster was contemporaneously planning to sue ‘the merged entity’ . . . on behalf of the University of Rochester.” “This is not about tactical maneuvers [by Pharmacia],” Sidley partner Charles Douglas said Monday. “It’s about the ethical obligations that a law firm owes to its clients. [Morrison's] not entitled to prefer one client over another based on the amount of billings that might be involved.” Dodson of Morrison contends in his firm’s response that Pharmacia lawyers have contrived “nonexistent Morrison & Foerster plots” and falsified the “most minor of details” to support their allegations. “Pharmacia is not now, and never has been, a Morrison & Foerster client,” he wrote. Pharmacia didn’t come into existence until five months after the University of Rochester retained Morrison, he said, and in the Prop. 65 case, Morrison’s chief client was SmithKline Beecham Consumer Healthcare. “In that action, Morrison & Foerster was counsel to [Pharmacia & Upjohn] in name only,” Dodson wrote. “P&U retained another firm, Crosby, Heafey, Roach & May [of Oakland] . . . to protect its interests in the California action, and interacted with Morrison & Foerster only through that firm.” Dodson was so irritated by Pharmacia’s allegations that he took — and passed — a polygraph test last month in hope of proving he didn’t do anything unethical in his dealings with the University of Rochester and Pharmacia. “I just wanted to put [those allegations] to rest,” he said, “as much as scientifically possible.” The disqualification motion will be argued Aug. 30 before U.S. District Chief Judge David Larimer of the Western District of New York in Rochester.

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