Wednesday, February 1, 2017

Federal Propecia®/Proscar® MDL Update: My Guess? Being A Bellwether Plaintiff May Entail Deeply Embarrassing, Occasionally Public, Disclosures

Again, another one of the first bellwether tranche cases has been closed out by mutual agreement, during the initial fact discovery phase. This makes three, by my unofficial count.

I suspect (see bolded portion in blue below) the dismissals are less about the plaintiffs not having the requisite evidence -- and more about the invasive nature of the discovery questions that Merck plainly has a right to ask of each plaintiff. After all, the claimed injury is lasting erectile dysfunction -- the inability to become firm, for sexual relations. It is clear that -- even if large portions of the discovery are filed under seal, the asking of the questions, under oath, on videotape, in a room full of lawyers -- in depositions -- would be extremely traumatic for many men of even more than regular (at least psychological) courage. [To that end, I've removed case names, wherever they previously appeared, on my site -- as of this morning.]

Add to that the chance that the problem becomes public gossip in one's neighborhood, and we can readily see why some men might bow out. Here is the latest order entered just this morning, in the federal courthouse in Brooklyn -- but the first few bellwether trials are still on schedule, in my estimation here:

. . . .With the parties having voluntarily dismissed [Redacted Name] v. Merck & Co., Inc., 14 Civ. 20XX, one of the cases in the First Bellwether Tranche, each side is ordered, consistent with paragraph 3 of PPO 15, to submit two cases from the Case Pool listed in paragraph 1 of PPO 15 so that the Court may select a replacement bellwether.

The parties are to submit their selections by 2/10/2017. The parties are to submit their filings as letters, not motions, and each side is limited to 5 pages single-spaced.

If the parties need to file their letters under seal, the parties should not file a separate motion to file under seal: The Court grants both parties leave to file under seal if the content of the letters so require. Finally,considering what happened in the [Redacted Name] case, plaintiffs' counsel is strongly urged to fully explain to each individual plaintiff the burdens of being a plaintiff in lawsuits of this nature.

Ordered by Judge Brian M. Cogan on 2/1/2017. . . .

Now you know. As I depart for points westerly tomorrow evening, I'll mention that it seems there is renewed talk of a repatriation measure/tax holiday -- under 45's incoming administration. That was likely thoroughly-discussed yesterday in DC with POTUS 45 and with Mr. Frazier in attendance, on his left (according to media photos thus far released).

As we've repeatedly mentioned, Apple now holds about $260 billion in cash overseas, while Merck holds around $75 billion overseas (Pfizer now holds over $90 billion). If the notion is to give a tax holiday on the cash return -- it should be tied to spending the cash on creating new jobs, and renewing infrastructure, in the US. That was US Senator Bennett's proposal (he's out of Colorado -- search "Colorado compromise" in the search box above right, for more on it) -- but it died in 2014. I may write a bit on this notion, this coming weekend, time permitting. Onward.



Anonymous said...

Very astute, Condor. I have to wonder if this MDL/MCL is not somewhat unique in how personal and potentially embarrassing the subject matter is. This is not the same as saying Vioxx gave me a heart attack.

I cannot thank you enough for your clever and informative blog and happen to very much agree with your political opinions though I'm here mainly for the Propecia news.

- Mr. I

Condor said...

Thanks Mr. I --

As if on a cue -- for instant irony -- see my latest post. Mr. Trump takes Propecia.

Explains all the bluster about no small hands, etc. -- me thinks.

Might also explain that thrusting penile logo he used, last summer, no?

It's just... surreal!

Namaste -- do stop back. . . smile

Anonymous said...

I have not posted in a while but things are getting "interesting" again so I am back...

2 questions:

Obviously the testimony the Plaintiffs have to give is very graphic and uncomfortable and I understand why some of them are bowing out. However, once these bellwether cases make it to trial don't you think the juries are going to be incredibly sympathetic? I say that because who in their right mind would make up stories about these types of "performance issues" and go public about it unless they truly were harmed in some way?

Regarding our current President, we agree 100% on his lack of qualifications for this job. Aside from that, why do you say Merck doesn't want to be associated with him? Is it because of his abrasive demeanor? He is bragging about being able to "perform" and no we know he takes Propecia. Not that this has any impact on the cases whatsoever but I'm curious why you think Merck would not want to be associated with him.

Mr. E

Condor said...

Thanks Mr. E -- first, I do agree that it would seem unlikely that someone would "make up" a story of that personally difficult sort. It will be interesting to see how a jury reacts to it all.

Now -- on 45 -- I think there is a substantial portion of the electorate that views him as a sexual predator, or at least a sexual reprobate.

His boasts about virility (at least for people who view his taped admissions of completed sexual assaults, committed on married women as odious) may thus be seen as more predatory than in other cases.

In sum -- if my premise is correct -- few companies in the business of saving lives want an endorsement for any product -- from a self-described (admitted) sexual predator.

That's my thinking, for what it is worth.

Welcome back -- and namaste!

Anonymous said...

I would have to think juries would be fairly sympathetic, but I'm guessing the Merck lawyers will try to argue that it's all in their head. So someone going to court would not only have to talk about these embarrassing details in a court room but risk having the other side's counsel try to make them look worse. I could understand it being daunting.

That said, I would hope those chosen for the bellwether cases would realize that other's fortunes are riding on this too, so a few intrepid souls have to make the leap to going through with the court cases. - Mr. I

It was indeed amazing to see Propecia in the news because of Trump. There was also recently a big piece in Tonic (the healthcare page for Vice) which summed up the recent science and legal situation quite well I thought, so you guys should check that out if you've not seen it.