Sunday, November 20, 2016

Update: My Federal Propecia®/Proscar® MDL Analysis Is Solid -- Merck Has Gilded The Lilly A Bit Too Much

I'll put up the confirmation, here late on Sunday evening -- as to the federal MDL governing the Propecia®/Proscar® sexual dysfunction claims. I think my analysis is sound. Here is the backgrounder. a longer, more thoughtful analysis of this development over the weekend -- but it would seem that The very capable Judge Cogan, in Brooklyn's federal District courthouse is (as we were, in early October of 2016) concerned that Merck may have "gamed" its selections -- in those so-called first tranche bellwether cases it chose. I say this, because federal Rule sub-section 41(a)(1)(A)(ii) [i.e., the sub-section of the rule cited below] provides that all parties may agree to dismiss a case, without judicial intervention. There would be only one reason a plaintiff would dismiss, after being selected as a test case: and that would be because the defense effectively shot a gaping hole through that case. Thus I posit that this is one of the cases the defense (Merck) chose -- and thus, upon learning of the likely fatal defect, plaintiffs agreed to dismiss.

On the smallish chance that I am wrong here, I am redacting the name of the plaintiff in the case involved.] I also won't put up the full six page PDF order until I've had time to sleep on the analysis -- and sip a root beer over it, sometime tomorrow afternoon.

Here is the full six page order (without redactions). This marks an important shift in the court's view of this federal MDL.

What appears at this link is a very unusual bit of "sausage-making" candor, from a preeminent sitting federal District Court Judge. Kenilworth's lawyers should regard it as a clear warning against additional "shenanigans" [a la Judge Keegan's quite similar warnings, of over six years ago now, also in New York federal court -- albeit in Manhattan, related to a then-pending Fosamax® ONJ bellwether trial -- also involving. . . Merck, and (wait for it) the some of very same law firms Merck is using on this MDL]. And so, this is NOT good, for Merck or its counsel (if my analysis is accurate, of course).

In fact, Judge Cogan has gone so far as to create his own set of questions -- [attached as a three page PDF] and impliedly will pick some cases of his own, once he has the answers back. That is. . . telling.

Now you know -- and do sleep well, all you youngsters -- a new but shortened holiday week begins very soon. . . smile.



Anonymous said...

Hi Condor - Thank you as always for these updates. Is the main takeaway here that Merck just seemed to be trying to get the tranche of cases in their favor in a too obvious and underhanded way? - Mr. I

condor said...

Yes Mr. I -- I think so... now we wait to see which cases the able judge adds to the bellwether mix.