Pharmacy professors seek jury trial (with documents)

Another lawsuit filed last week against BOR, Warren

By: Staff reports

Posted: 5/21/08

A present and former University professor of pharmacy have requested a jury trial in a federal lawsuit that claims they violated copyright infringement

Former professor Flynn Warren Jr. and clinical associate professor Henry Cobb III filed notice last week their intent to seek a demand for trial by jury in the case filed against them by the National Association of Boards of Pharmacy. The NABP accused the two of collecting and disseminating pharmacy test questions for the North American Pharmacist Licensure Examination and Georgia Multistate Pharmacy Jurisprudence Examination to students during the past few years.

The NAPLEX is required to obtain a license to practice pharmacy and is used by all 50 states' boards of pharmacy. After the lawsuit was filed in August, the executive committee of NABP decided to suspend all administrations of the NAPLEX and did not administer the test nationwide for several months.

Last week, after losing its bid in federal court to sue the Board of Regents, the NABP filed a lawsuit in Fulton County Superior Court claiming the BOR, and Warren breached a 1995 agreement when they continued to copy and transcribe NABP copyrighted materials.

The Red & Black reported last month that a federal judge said Warren and Cobb remain liable for copyright infringement but dismissed the suit against the BOR and College of Pharmacy administrators. U.S. District Judge Clay Land dismissed charges of trade secret misappropriation - an accusation of stealing and disseminating test questions - and breach of contract against Warren and a charge of trade secret misappropriation against Cobb.

But the court left open the door for NABP to sue the BOR and Warren in state court for breach of contract. The April 18 order from the Land states: "Georgia has waived its sovereign immunity from suit in state court for breach of contract actions, and Plaintiff may recover damages to compensate for the breach of contract . . . Accordingly, the Court concludes that a state law breach of contract claim provides Plaintiff with adequate postdeprivation process for the deprivation of property alleged here, so the deprivation was not 'without due process of law.' "

The Red & Black first reported in August that Warren and the BOR were named as defendants in the federal court case, in which they were accused of collecting and disseminating pharmacy test questions to students during the past few years. Cobb was added to the lawsuit in October, but is not included in the state suit since he was not party to the 1995 agreement.

Warren is accused of copyright infringement because NABP owns the copyrights on the exam questions. Court papers say he asked students to memorize NAPLEX test questions and share them with him. He collected the tests' contents and created a review packet.

Warren is faced with these accusations because he was never "granted a license ... to copy, sell, distribute, prepare derivative works from, or otherwise offered to transfer the ownership of the copyrights of the NABP Examination Questions, to which NABP has exclusive rights," the initial court papers read.

The breach of contract charge stems from a 1995 settlement agreement, in which Warren and the BOR said they will "cease and desist for profit or otherwise from all past, present and future copying, transcribing or other infringing use of NABP copyrighted materials, including but not limited to patient profiles, sample questions, or other copyrighted information."

The April 18 order states in its conclusion that "Plaintiff may bring its state law breach of contract claim against the Board in state court. Therefore, if the Court retained jurisdiction over the breach of contract claim against Warren, there would be two different lawsuits on the exact same claims arising out of the exact same set of facts pending in two different courts. For these reasons, the breach of contract claim against Warren is dismissed."

The judge in the Fulton County Superior Court case is T. Jackson Bedford Jr.

Read The Red & Black's coverage of the lawsuit between NABP and the University.