Wednesday, May 31, 2017

Will Merck File For Certiorari, In The US Supreme Court -- On Federal Fosmax® MDL Partial Set-Back, In The Third Circuit?

This rather old MDL has been remanded by the appellate courts, to the New Jersey federal District Court, for additional trial level proceedings.

But -- a wrinkle: Kenilworth has yet to decide whether it will take the case up on cert., to the Supremes. In my opinion, there is very little chance that the Supreme Court will grant certiorari -- and even if it does, that the Supremes would overrule the Third Circuit here. So my bet is that near or after July 24, 2017 -- we will see renewed trial level motion practice on this now more than a decade old piece of federal products liability class action litigation. [Recent backgrounder, here.]

Here's the three page PDF joint status update letter, filed overnight -- and a bit:

. . . .Merck Sharp & Dohme Corp. (“Merck”) is presently evaluating whether it will seek a writ of certiorari from the United States Supreme Court. A final decision has not yet been made. The deadline for seeking a writ of certiorari is July 24th. Once a final decision has been made, Merck will inform this Court.

At the present time and in light of the present posture of the MDL, Merck does not intend to file any motions. If Merck decides not to seek a writ of certiorari or the Supreme Court denies Merck’s request, there are certain motions that Merck likely will file. As an example, Merck believes that approximately 15% of the cases that may be in the MDL involve injuries that occurred well after a warning was included in the Prescribing Information regarding the alleged injuries at issue. The adequacy of that warning, Merck believes, can be determined as a matter of law, and such a finding could have a significant effect on the overall inventory. Other case specific motions would be likely. . . .

As noted in Plaintiffs’ position below, Plaintiffs seek a stay of all proceedings pending the outcome of an appeal to the Supreme Court. With one exception, Merck does not object to Plaintiffs’ request. The one exception pertains to Plaintiffs’ obligation to provide a Plaintiff Fact Sheet (“PFS”) for each plaintiff, as many plaintiffs never provided a PFS. Plaintiffs previously agreed to provide such a PFS and the information required by the PFS is basic information that certainly should be readily available to each plaintiff, e.g., date of incident, identity of treating physicians, essential records and radiology. The burden on plaintiffs is minimal, and the information is critical to both evaluation for resolution and case selection for a bellwether process.

In regard to settlement discussions, Merck has been actively involved in discussions with several firms that have cases in the MDL and state courts. To date, those discussions have resulted in the resolution of more than 40 claims asserted by one firm. Merck has ongoing discussions with several other firms. . . .

Plaintiffs disagree that any further motion practice, including case specific motions or motions concerning cases where Merck believes that the injuries occurred after certain plaintiffs were provided prescribing information regarding the alleged injuries should occur before case specific discovery has been completed including, but not limited to, depositions of the plaintiffs and their treaters.

Finally, while Plaintiffs appreciate that Merck is discussing resolution with certain firms, no settlement discussions that could resolve the entire litigation in federal or state court are taking place. Plaintiffs are always amenable to engaging in productive settlement discussions that could resolve the claims pending in federal court. . . .

Now you know. Do go read all three pages, if you are curious. Onward, now -- busy with lots of client meetings today. Likely mostly silent.


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