THE UNITED STATES DISTRICT COURT FOR 

THE DISTRICT OF NEW HAMPSHIRE 

IMS HEALTH INCORPORATED, a Delaware ) 

corporation and VERISPAN, LLC, a Delaware ) 

limited liability company, ) 

 ) 

 Plaintiffs, ) 

 ) Case No. 06-CV-280-PB 

vs. ) 

 ) 

KELLY A. AYOTTE, as Attorney General of ) 

the State of New Hampshire, ) 

 ) 

 Defendant. ) 

_______________________________________) 

Declaration of Jody Fisher in Support of 

Plaintiffs’ Motion for Preliminary Injunction

I, Jody Fisher, hereby declare under penalty of perjury that the following information is 

true and correct: 

1. I am over 18 years of age and have personal knowledge of the information 

provided in this declaration. I am Vice President of Product Management of Verispan LLC 

(“Verispan”) for the Americas region. I have management responsibility for a number of 

Verispan’s products and services throughout North America and Europe, including doctor level 

services in the United States. I have been employed by Verispan and its affiliates for more than 

8 years. 

Verispan’s Background

 2. Verispan is a healthcare information company founded by Quintiles Transnational 

Corp. and McKesson Corp. Verispan is one of the major providers of healthcare information in 

the United States. Since its founding as Scott-Levin Associates, Inc. in 1982 and along with its 

constituent companies formerly known as Kelly-Waldron, SMG, Synergy, and Amaxis, Verispan 
2 

has served the pharmaceutical and healthcare industries in the United States with an important 

source of healthcare information. Verispan contracts to receive nearly half of all U.S. 

prescriptions and nearly one-quarter of all U.S. electronic medical transactions annually. 

Verispan captures a sample of data from a near-census of U.S. retail pharmacies. By focusing on 

breadth of data coverage, Verispan is able to improve insight into prescription and medical 

activity at the national, regional and individual prescriber level. 

 3. All of Verispan’s proprietary databases are composed of patient de-identified 

data. This means that Verispan does not collect, process, use or transfer information that 

contains the identity of patients in any of its subscription services. With the aid of Verispan’s 

vast amount of data, the medical, scientific, pharmaceutical and healthcare management 

communities are able to track patterns of disease and treatment, conduct outcomes research, 

implement best practices, and apply health economic analyses. The company’s prescriberidentifiable databases are essential to effective implementation of prescription drug recall 

programs, performance of pharmaceutical market studies, efficient pharmaceutical sales and 

marketing resource allocation, and assessment of drug utilization patterns (e.g., on-and-off label 

uses and regional variations in physician prescribing behavior). 

 4. Verispan’s databases are also essential to the effective implementation of health 

care studies. For example, Verispan’s data is currently used by the Department of Health and 

Human Services through the Food and Drug Administration (FDA). The FDA uses Verispan deidentified prescription data to monitor the incidence by which any two dispensed drugs are used 

together with one another. This is used by FDA as the backing to many interaction studies they 

perform in assessing the safety of ethical prescription medications. Verispan’s data has also 

been used by many of its clients to effectively identify eligible prescribers for clinical trials. In 

these cases accurate prescriber level data is crucial to perform accurate and expeditious clinical 
3 

trials, which may provide critical healthcare options to patients in need of alternative treatment. 

Prescription Data

 5. Retail pharmacies in the United States are primarily composed of chain 

pharmacies, independent pharmacies, mass merchandisers and food stores with in-store 

pharmacies, mail order pharmacies, and long term care pharmacies. 

 6. Retail pharmacies acquire prescription data during the regular course of business. 

They then license, sell, or transfer patient de-identified prescription information to Verispan. 

 7. Since 1999, Verispan has been purchasing patient-de-identified prescription 

information from retail pharmacies, pharmacy benefit managers, prescription clearinghouses, 

payers, and software vendors located throughout the United States, including the State of New 

Hampshire, by entering into contracts with these entities directly or through intermediaries. 

Some of the pharmacy benefit managers, prescription clearinghouses, payers, and software 

vendors that sell prescription information to Verispan are located outside of New Hampshire and 

the information they sell includes prescriber-identifiable data pertaining to New Hampshire 

prescribers. Such sales and purchases take place entirely outside of New Hampshire. 

 8. The information that Verispan purchases from the New Hampshire pharmacies 

includes the name of the pharmaceutical product, the form, strength and dosage of the product, 

the quantity dispensed, and a prescriber identifier number, such as a drug enforcement 

administration number, which Verispan can link with acquired and licensed resources to obtain 

the physician’s name and address. Pharmacies do not provide patient-identifiable information to 

Verispan. 

 9. Currently, Verispan acquires, aggregates and analyzes information relating to 

billions of prescription transactions per year throughout the United States. 

 10. Verispan acquires, licenses, sells, uses, or transfers the prescription information 
4 

for two distinct purposes: 

 a. First, in order to make a profit. 

 b. Second, to improve public health and welfare by licensing, selling, and 

transferring it to pharmaceutical companies and to other persons and entities that devote 

substantial resources to using the information to improve public health and welfare. 

 11. Some of the entities to whom Verispan licenses, sells, or transfers the information 

use the information for advertising, marketing, and promotional purposes. These entities and 

others use the information for other purposes that are not associated in any way with advertising, 

marketing, and promotional purposes. 

 12. Verispan strongly believes that the widespread dissemination and use of the 

information that it gathers and analyzes improves the health and welfare of consumers. 

 13. Verispan does not license, sell, use or transfer the information for any deceptive 

or unfair purposes and does not license, sell, use or transfer the information to persons or entities 

that they know would use the information for any deceptive or unfair purposes. 

The Uses of Verispan’s Prescriber Data 

 14. Upon receipt of patient-de-identified prescription data from a source, Verispan 

associates combine this prescription data with drug and prescriber reference files for various 

purposes, including (a) to match each prescription to the correct prescriber, (b) to identify and 

use the correct name of the prescriber, and (c) to add address, specialty and other professional 

information about the prescriber to the prescription data. These reference files are created using 

information obtained from various sources. The American Medical Association’s Physician 

Masterfile is a source of information for reference files on prescribers. The AMA’s Masterfile 

contains demographic, educational, certification, licensure, and specialty information for more 

than 800,000 active U.S. medical doctors (MDs) and over 90% of the doctors of osteopathy 
5 

(DOs), including members and nonmembers alike. 

 15. Verispan uses patient-de-identified prescription data, together with the reference 

file information, to produce a variety of databases. Verispan uses these databases to create a 

number of different reports and services regarding prescribed pharmaceutical products, some of 

which include prescriber-identifiable information and some of which is aggregated and reported 

on a broader geographic level. Verispan uses the patient-de-identified prescription data that it 

acquires to create a number of different forms of information regarding prescribed 

pharmaceutical products. Verispan then sells the information or makes the information available 

to third parties for many different uses. 

 16. The prescription information supplied by Verispan to its pharmaceutical and 

biotechnology clients are used for many purposes. For example, the information allows these 

clients to: 

a. Prioritize the release of public safety news alerts based on physician 

prescribing details, 

b. accelerate innovation through insight into the needs and habits of those whose 

health the new drugs are designed to improve, 

c. determine which products to develop and license and what acquisitions to 

consider. 

d. disseminate effectively and quickly vital, life-prolonging information to those 

prescribers for whom the information is relevant and most useful, 

e. allocate effectively valuable, life-prolonging sample medications to those 

prescribers whose patients need them most and are more likely to use them, 

f. determine whether a particular prescriber is prescribing products that the 

pharmaceutical companies have determined to be inappropriate in light of the 

development of new products that may be more effective, safer, or less 

expensive, 

g. implement prescription drug recall programs. 

h. evaluate, segment, target, size, compensate and deploy its sales force. 
6 

i. allocate limited marketing resources to individual prescribers in a manner that 

reduces cost and saves time. 

j. understand managed care’s effect on the U.S. pharmaceutical marketplace. 

 

 17. Verispan does not sell or market pharmaceutical products or drugs to prescribers. 

Thus, Verispan does not itself use the information that it gathers to influence sales or market 

share of a pharmaceutical product. 

 18. Patient-de-identified prescription information without prescriber-identifiable 

information is not an adequate substitute for accurate information regarding the actual 

prescriptions written by individual physicians for many reasons, including: (a) pharmacies fill 

prescriptions that come from distant prescribers, (b) information from pharmacies frequently do 

not include any other proxies by which the geographical location of the physician can be 

ascertained accurately, (c) information from pharmacies do not include the specialty of the 

prescribers who wrote the prescription, (d) the information is not useful for all of the uses 

described in paragraphs 18 above, and (e) significant errors in the information cannot be 

ascertained. 

The Prescription Restraint Law

 19. I have reviewed New Hampshire House Bill 1346, 2006 N.H. Laws 328, codified 

at N.H. Rev. Stat. Ann. 318:47-f & 318:47-g & 318-B:12, IV (2006) (the “Prescription Restraint 

Law”). 

 20. The statute prohibits pharmacies and other similar entities from continuing to 

license, sell, use, or transfer prescription records containing prescriber-identifiable to Verispan 

for certain commercial purposes. The statute imposes severe criminal penalties for violations of 

the statute and also authorizes civil suits for damages, punitive damages, and injunctive relief to 

be brought for violations of the statute. 
7 

 21. The Prescription Restraint Law does not explain how pharmacies and similar 

entities are to determine whether a particular transaction is for a commercial purposes. It does 

not, for example, state whether the purpose of the seller of the information, the buyer of the 

information, the end-user of the information or a combination of all three is determinative of 

whether a transaction is for a commercial purpose. 

 22. Following passage of the act and as a consequence of the severe criminal and civil 

penalties that it authorizes, Verispan has decided to modify its databases so that it can identify 

and suppress the prescriber-identifiable data from New Hampshire prescriptions from its 

subscription services before the prescription information can be released to pharmaceutical 

companies or other third parties. 

 23. The Prescription Restraint Law defines a “commercial purpose” as “advertising, 

marketing, promotion, or any activity that could be used to influence sales or market share of a 

pharmaceutical product, influence or evaluate the prescribing behavior of an individual health 

care professional, or evaluate the effectiveness of a professional pharmaceutical detailing sales 

force.” 

 24. Enforcement of the Prescription Restraint Law will inflict irreparable injury on 

Verispan because it imposes criminal and civil penalties on entities who sell, license, or transfer 

to Verispan lawfully obtained, truthful information about matters of public importance and 

concern -- prescription records containing prescriber-identifiable data. Enforcement of the law 

ultimately will make it impossible for Verispan to obtain the information, to aggregate the 

information, to analyze the information, and to sell the information to pharmaceutical companies 

for use in their legitimate marketing efforts. Enforcement of the law also will inflict irreparable 

injury on the pharmaceutical companies that wish to obtain prescriber-identifiable data from 

Verispan so that they can use the information to focus their marketing efforts on those 
8 

prescribers who can most benefit from the marketing efforts. Most importantly, it prevents 

pharmaceutical companies from communicating important information to prescribers to help the 

prescribers make the best decisions they can make about the drugs that they will prescribe for 

their patients. 

 25. Ultimately, Verispan succeeds as a company only as long as it can continue to 

deliver valuable information that helps pharmaceutical companies and others efficiently deliver 

effective, innovative and safe healthcare products to the public. The Prescription Restraint Law 

directly impairs the ability of Verispan to fulfill that mission in New Hampshire. 

 Executed on July 27, 2006, in Yardley, Pennsylvania 

_________/s/ Jody Fisher________________ 

 Jody Fisher