This very morning, June 20, 2009, Finding Dulcinea has made mention of the CafePharma/ENHANCE results "precognition" controversy. Conspicously absent from her analysis, though, is the rather important fact that, as of May 18, 2009, Judge Cavanaugh had ruled the CafePharma posts -- all of them -- could at least be offered up, to the trial court, for additional subsequent consideration, as potential substanive evidence of the "scienter" of various Schering-Plough officers and directors and affiliated entities. From Finding Dulcinea, then:
. . . .Earlier in 2009, online comments from the site CafePharma, a forum for discussion of drugs, were used in a lawsuit against Schering-Plough Corp. and Merck & Co. The suit asserted that the companies did not disclose test results showing that their drug Vytorin does not unclog arteries any better than an older, less expensive drug. . . .[From an earlier article, same site:]
. . . .Their remarks follow a lawsuit filed by investors for securities fraud, saying that the companies did not disclose test results showing that Vytorin does not unclog arteries any better than an older, less expensive drug. The suit contained postings from CafePharma.
According to Bloomberg, the comments relate to the fact that the companies knew there were problems with the tests and did not make them public. The posts were “very detailed,” said Sean Coffey, a lawyer for the investors.
But the companies wrote in their request to U.S. District Judge Dennis Cavanaugh that “CafePharma is, literally, the cyberspace equivalent of scrawls left on a men’s room wall.”
The case has added fuel to an already smoldering debate regarding the Internet’s role in the courtroom, as several recent lawsuits have centered on comments made online. . . .
Interesting. As ever, more to come.
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