Thursday, August 13, 2015

Exclusive -- Propecia® MDL Update: Rule To Show Cause Hearing For Dr. Imperato-McGinley: September 2, 2015

So the worm turns. Apparently, Dr. Imperato McGinley did not turn over the voluminous set of documents associated with her finasteride studies, to the plaintiffs -- as she promised she would. I would not have predicted/expected this outcome. [My May 2015 backgrounder.]

Apparently, she is being -- or has been -- represented by one of the in-house lawyers at the New York Presbyterian/Weill Cornell Medical Center. Also apparently, that in-house counsel has responded that the institution -- not the doctor -- controls custody of the 16 to 40 boxes of clinical trial records thus far pulled from storage. After some wrangling, the in-house counsel has also apparently said that she won't accept service of a subpoena for the boxes, as a representative of either the doctor, or the institution.

And so, a rule to show cause hearing is now set for September 2, 2015 -- in the Eastern District of New York. This will be a hearing as to why the doctor or the institution ought not be held in contempt of court -- for allegedly evading the lawful discovery by subpoena process under the federal rules of civil procedure. I understand that there is a lot to look through, but it will be embarrassing if either of these parties is ultimately held in contempt for failure to go through the boxes, and provide relevant documents. The plaintiffs have even offered to cover the cost of that effort. This ought to be entertaining. From the full pleading (a 6 page PDF file), then -- a bit:

. . . .The only document furnished by Dr. Imperato-McGinley was a two-page “bibliography.” Moreover, Dr. Imperato-McGinley’s responses strongly suggest, consistent with her counsel’s initial representation that there were at least sixteen boxes’ worth of documents, that numerous responsive documents do exist, but Dr. Imperato-McGinley is claiming not to have “possession, custody, or control” of those documents. Indeed, Dr. Imperato-McGinley is careful to assert, in each of her responses, that she has no responsive documents in her “possession”. . . .

Dr. Imperato-McGinley is, according to Merck, one of the most important individuals in the development of Finasteride, and the development of Finasteride in turn appears to be a major component of her life’s work. It is simply implausible – in fact, it is utterly unbelievable –- that Dr. Imperato-McGinley has no “right, authority or practical ability” to obtain and produce the relevant documents within the sixteen to forty boxes’ worth of documents at issue. Indeed, the fact that these boxes were apparently obtained by the attorney who represents her, reviewed with the assistance of a clerk at the undersigned’s expense, and then simply withheld on the eve of the date set for production conclusively demonstrates that numerous responsive documents were and remain within Dr. Imperato-McGinley’s “possession, custody, or control,” or at a bare minimum in the “possession, custody, or control” of her “representatives. . . .”

So, September 2, 2015 should be an interesting morning in the federal courts in Brooklyn. Stay tuned -- off to a charitable board meeting, tonight.


Anonymous said...

Wow, that's quite an update. With the usual caveat that I don't know much about this process, that seems like some kind of effort to stonewall or delay or something. It doesn't seem like the action of folks who are supremely confident about their case with all of the evidence on the table. - Mr. I

Condor said...

Just a couple of additional thoughts, Mr. I --

I was truly surprised that the University Med Center lawyer chose a "gamesmanship" path for her responses. That said, I am not sure that I'd attribute the gamesmanship to Merck, proper. I think Kenilworth is out of this hunt, both on and off the record.

I am not even sure we can attribute the counsel's behavior to the putative client, Dr. Imperato-McGinley. Maybe she was instructed to be difficult by her superiors at the hospital. Seems like the way the hospital might approach a typical med mal case, for care received int the hospital -- but seems out of the main, for a national MDL related to a drug trial/drug claims.

I guess we will find out at 2 p.m. EDT, on September 2, 2015. It may just be an overzealous, under-experienced lawyer's mistake -- in federal practice. The doctor has been ordered to appear and expalin herself to the able US Magistrate Judge -- so we will hear something on that day. [I suppose it is still possible that the University hospital turns over a responsive set of documents before the show cause hearing date.]

Pop the pocorn, folks. I do now think there will be some responsive and useful documents (for the plaintiffs' counsel), somewhere in those reputed 40 boxes.

Thanks for stopping by -- Namaste

Anonymous said...

Thank you for your thoughts. I actually did think about something along those lines after making my last post, that is to say, that it could have been something driven by the university more than by Merck or Dr. I-M. Seems an interesting twist either way. Cheers. - Mr. I

Anonymous said...

Mr E checking in from vacation... that explains my delayed response to this cliffhanger of an update, haha.

Is it safe to say that between Dr. I-M and the other situation where Merck was found to be withholding about 1/3 of discoverable documents that the Judge is getting quite irritated with Merck? I understand your point that Merck may not be behind Dr. I-M's actions (or lack thereof) but even so though I would guess the Judge is less than amused by these events.

Mr. E

Anonymous said...

Apparently just more stall tactics by Merck and it's litigation staff, who seem to be pretty busy these days with other drugs they produce in the courts system as well. Do you get the idea there is a different mindset at Merck in their corporate mission ? Make the almighty dollar then cover up our tracks as best we can.
My thinking is that there has to be on the law books a prior case that the judge could cite a judgement on. This certainly is not the first time a large corporation has tried these hijinks. My guess is they passed down a contempt of court order and ruled the defendents turn over their documents ASAP and not drag that out for another year. Don't be surprised if Merck is able to drag turning the documents in for another year. Just saying.

Condor said...

You may well be right, Anon.

We shall see.