Monday, February 8, 2016

The Latest -- From Federal Propecia® MDL In Brooklyn: Last Thursday's Status Conference -- Outcomes; Smallish Scheduling Changes

The very-able Judge Brian L. Cogan has now been officially named -- to replace the retiring Judge Gleeson (as of this morning's electronic PACER docket entries), and so we may infer that as to the second to last paragraph quoted in blue ital. below, from Thursday's status conference minute order, that Judge Cogan will continue to rely on Magistrate Kuo's pre-trial management procedures [i.e., no re-work there -- good news.]

We may also infer that both sides wish to move swiftly to bell-wether case selection (thus the list of 50 names by February 22, 2016 -- and fact sheets for all 50 from Merck by May 6, 2016). The earlier dates were February 1, 2016 and April 15, respectively, just for your information. Even so, Merck's deadline -- for the five cases it would like to try (as bellwethers) remained the same -- May 27, 2016. So I think it fair to say that overall -- the litigation is heating up. Here's the minute entry, in full:

. . . .Minute Entry for proceedings held before Magistrate Judge Peggy Kuo.

Status Conference held on 2/4/2016. Attorneys Trent B. Miracle, and Timothy J. Becker appeared on behalf of plaintiffs. Attorneys Charles Morrow, Ben Scott, and Matthew T. McLaughlin appeared on behalf of defendant Merck & Co. Attorney Mili Makhijan appeared for defendant Medical Hair Restoration.

The parties agreed and the Court approved the following changes to the Discovery and Trial Plan Practice and Procedure Order No. 10, dated September 29, 2016, Document No.: [274]

At Page 3, Item No. 6: "Defense Fact Sheets. On or before February 22, 2016, Plaintiffs will provide Merck with a list of fifty (50) Plaintiffs. Merck must serve on Plaintiffs substantially complete Defense Fact Sheets for these fifty (50) cases by May 6, 2016. Merck must also serve on Plaintiffs substantially complete Defense Fact Sheets for the five (5) cases selected by Merck for the Case Pool no later than May 27, 2016." (changes in bold).

The parties state that they anticipate agreeing on further amendments to the scheduling of deadlines in that PPO and that they would submit those proposed amendments to the Court in "Track Changes" mode for the Court's approval.

With regard to the suggested judicial reassignment of the case to District Judge Cogan, the parties expressed a desire to know whether the District Judge would continue to rely on the Magistrate Judge's pre-trial management of the case. The parties stated their belief that the case is now moving from a phase focused on mechanics to a more substantive phase.

The next status conference is scheduled for March 16, 2016 at 1:00 pm, in Courtroom 322 North, before Magistrate Judge Peggy Kuo. . . .

We will of course keep you apprised. Now enjoy the bits of fluffy white stuff on your walk this afternoon!


Anonymous said...

Hey Condor - Can you explain why there is also an MCL in New Jersey in addition to the MCL in New York? I thought the point of the MDL is consolidation, but I wonder why there's more than one epicenter, so to speak. Thanks - Mr. I.

Condor said...

Sure Mr. I. --

It comes down to the plaintiffs' choice: some feel they will (either on procedural grounds, or substtantive rules of law) fare better in one forum over the other. And plaintiffs (within broad limits) get to choose where they bring their suit, originally.

The choice is whether you want federal court (NY Eastern District, in Brooklyn) -- or State court (New Jersey). In theory, the results should be the same, but some prefer to litigate where the drug company sits -- i.e., in New Jersey state courts.

Some people also believe (though I do not necessarily share this view), that in general, the federal judges are better -- more learned -- jurists. And all federal judges are appointed for life, on merit. In some states, judges are elected officials, leaving some room for influence there -- or so some say.

So -- the cases have been consoludated in two forums, to allow the plaintiffs a choice.

But Merck too has rights -- it has the right to say it shouldn't have to face separate litigation in every state in the Union, so it can always manuever to lay venue for the chosen fora (state and federal) to be near its base of operations, for convenience.

Thus NJ and NY.

Namaste -- great question! I'm out!

Anonymous said...

Trial order for MCL available ( )

Condor said...

Thanks so much, Anon.!

Will put up a new post on this tomorrow, but I think this means one of the federal test cases will go to trial before a state one -- we shall see.


Anonymous said...

You may be right. While the time-lines differ on a few key events it is worth noting that dates for filing the motions to trial pics is over 2 months prior to MDL. What this translates to is even less certain.