Keenan Shares Tips on Preparing Drug and Device Reps for Trial

Shook, Hardy & Bacon Partner Matthew Keenan authored a September 29 Law360 article, “Five Tips for Preparing Sales Reps for Trial Examination.”

Noting that sales representatives can be challenging witnesses when defending drug and device companies, as they “offer seasoned plaintiffs’ counsel an opportunity to exploit their jury-friendly themes,” Keenan recommends five tips to help defense attorneys prepare for effective examinations at trial. First, Keenan suggests thoroughly sifting through all documents to identify which directly relate to the sales representative and physician, as “that’s likely where the adversary will begin as well.”

Second, Keenan recommends preparing a trial-ready direct exam, as “sales reps are typically millennials, which means they are often about to change jobs or perhaps have already left employment with the client.” Preparing an outline for the direct exam will also help “organize the approach to the cross exam.”

Next, Keenan notes that in his experience with drug and device reps, “many have limited understanding of how easy it is for plaintiffs’ counsel to drive wedges between the company and the physician.” Therefore, he recommends that defense counsel “lay out the theories, and identify the kernel of truth in the plaintiff’s themes so that they [the sales reps] have a keen understanding of the challenges ahead.”

Fourth, Keenan suggests referring to the company’s sales training, as “reps are trained and reminded endlessly of the prohibitions of marketing, sales, and sticking to the label.” The ethical codes for physician interactions is a “useful safe harbor for all company witnesses.”

Finally, Keenan encourages defense counsel to identify the many sources of information available to physicians and patients beyond the data provided by the company.

“In short, drug and device reps will always present challenges for defense attorneys at trial,” Keenan says. “Identifying at the outset both the generic and case-specific obstacles will help to ensure a successful defense of your marketing witnesses.”