Friday, February 7, 2014

Will An Agreed Conditional $100 Million Settlement Order Be Entered -- In The Legacy Schering-Plough (now Merck) NuvaRing® MDL Tomorrow, Around 12:30?

UPDATED: Merck has confirmed it, at $100 million -- a great deal, for Whitehouse Station:
. . . .Merck, the second-biggest U.S. drugmaker, denied any fault under the agreement, which it said must be accepted by 95 percent of the approximately 3,800 eligible patients involved in lawsuits now pending in federal and state courts. . . .

I'll likely dial in live, to monitor the progress of the Missouri federal District Court (Eastern Division) NuvaRing® MDL court-ordered status conference, remotely -- at 11:30 local.

[Backgrounder here; and (semi-related background here) -- but at the purported (MSM reported) likely figures, it is defnitively immaterial to New Merck.] Apparently, unlike most other federal District Courts, the Eastern District of Missouri provides, by local rule, access to its proceedings by monitoring telephone conference calling. Much like the year end earnings conference call, conducted by Merck, a day ago -- except that all remote participants are required to stay in muted mode.

First, I'll applaud the transparency -- and then note that the courts (under our founding documents) should ever be open to the Nation's people. And this -- tomorrow -- is the 21st Century equivalent of an open court room door. "The people ought to be free to silently, and peacably, monitor the functioning of the Republic's judiciary1. . . ." From the order, entered overnight yesterday, then:

. . . .ORDER: IT IS HEREBY ORDERED that a status conference is set in this matter on February 7, 2014 at 11:30 a.m. in Courtroom 16 South.

IT IS FURTHER ORDERED that Counsel who wish to monitor the status conference are directed to call the conference toll free at 1-XXX-XXX-XXXX from the United States (for callers outside the United States the caller paid international number is 215-XXX-XXXX). The access code to enter the telephone conference for all participants is: XXXXXXX.

Counsel will then be prompted to enter the participant security code: XXXX followed by the # (pound) key. This conference will be activated at 11:15 a.m. so the conference may start promptly at 11:30 a.m.

Counsel monitoring the conference must mute their phones so the proceeding is not interrupted by background noise.

Signed by District Judge Rodney W. Sippel on 2/4/14. . . .

Do stay tuned; we will have an outcome post, immediately upon the conclusion of the court's morning docket.

Now, at a presumed $100 million, this would be a tremendous victory for Merck (though pyrrhic -- in that it makes the Schering Plough bust up even more of a turkey of a deal!) -- why? Because others have settled similar hormonal birth control MDL litigation in the $1.2 to $2 billion range.

Merck won a very favorable summary judgment order in New Jersey state court in April 2013 -- and the plaintiffs haven't ever really been able to fully restate their case in a way that avoids the contours of that state court order.

Essentially, a whole category of expert testimony -- from treating doctors -- has been ruled ineligible for introduction, in the Merck state-court MDL. Expert opinion testimony, about how NuvaRing might have caused the plaintiffs' injuries. They can't even get it in the door. Thus, at about $58,000 per claimant, Merck would be out -- very much at the bottom of the range -- as compared to say Bayer AG's MDL payouts, for example -- where the figures were nearly ten times that. So it goes.


1. Alexander Hamilton MIGHT have said that, in Federalist No. 78 to 84. Hah!

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