Thursday, October 6, 2016

Propecia®/Proscar® MDL Update: Today, The Initial Six Bellwether Cases Have Been Suggested -- With Three Per Side

In the federal District courthouse in Brooklyn this afternoon (as we indicated they would, last week), both Merck, and the plaintiffs' lead counsels revealed their three (cherry-) picked cases. Well, they each revealed them to the able trial court judge, Brian M. Cogan I should more properly say. Of course, where erectile dysfunction is among the alleged off-target / side-effects, it makes quite a bit of sense that some plaintiffs might prefer not to be identified by name, in the public record -- any more than absolutely required, to allow the cases to proceed. Indeed, there are very important health care/personal privacy interests at stake here.

In view of that, both sides then immediately filed mirroring motions to seal the names and all other details of the three cases each had selected. Judge Cogan provisionally granted those "stereo" motions, this evening -- subject to his determining that the sealing is appropriate, upon review of the involved papers -- and still addresses any concerns about a free press, and the general preference for open access to our federal courts. That said, I suspect the names will remain sealed. These cases are more sensitive, in my view, than the Vioxx, the Fosamax or NuvaRing ones -- given that a central claim of most of these male plaintiffs is a permanent (or at least long-lasting) reduction in their manhoods' firmness.

For our part, we hereby resolve not to name any plaintiff, unless a given named plaintiff consents in writing to the contrary -- after either (i) an appropriate court order, or (ii) proof of identity, attached to the consent. Here is the full text of tonight's order:

. . . .ORDER granting Motion to Seal, subject to the Court's review of the sealed materials after it has been filed so the Court can determine whether sealing is necessary. Ordered by Judge Brian M. Cogan on 10/6/2016. . . .

And so, the federal MDL stays on track to hold a first bellwether trial -- as early as September 2017, or about a year from now. The state consolidated action (in New Jersey) will start similar "test case" trials no earlier than April 2018, in all likelihood. Now you know -- so sleep well, one and all. . . . like little round river rocks. A busy day lies ahead, on the 'morrow. Smile. . . .


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