We Now Likely Know WHY Merck Is Settling For Boxcar Numbers In This Litigation With Most Parties, Here Even As It Picks A Jury...

Last night, in Norfolk, Virginia, the trial court reversed an earlier magistrate decision. That reversal means Merck cannot muddy the waters -- about the validity of the Zetia patents -- by citing evidence from a post-Glenmark settlement piece of litigation on the same patents, against Mylan.

That is, it would prejudice this trial, and would confuse the jury -- to hold a largely irrelevant patent trial (Mylan) within the main patent trial (Glenmark), all wrapped inside an. . . antitrust trial (on Zetia). That is the way the able USDC Judge just memorably put it.

Thus, it seems, Merck is being compelled to pay various plaintiff classes loads of money. The jury will see how Merck gamed the patent laws to keep Glenmark and others off the market for years, and in fact made reverse payments to keep them off market. That will be lethal (in Condor's experienced opinion) to Merck's defense that this was in any manner pro-competitive. Here's the full 26 page opinion and order, and the concluding bit:

. . .After a de novo review, 28 U.S.C. § 636(b) (1) (B) ; Fed. R. Civ. P. 72(b), the court FINDS that the prejudicial effect of evidence related to the Mylan litigation that post-dates the Merck v. Glenmark settlement substantially outweighs its probative value. Fed. R. Evid. 403. Accordingly, Plaintiffs' Objections, ECF Nos. 2026 (DPPs and EPPs), 2029 (Retailers) are SUSTAINED and Plaintiffs' Motion in Limine No. 19, ECF No. 1817, is GRANTED.

The parties are DIRECTED to proceed at trial in accordance with the directives of this Memorandum Opinion and Order. The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to counsel for all parties.

IT IS SO ORDERED. . . .

Will we see more settle out before Monday, when jury-picking resumes? Who knows?

In passing, do consider that the admitted facts in this trial are far more nuanced than the ones on which Martin Shkreli was ordered banned for life. That is now a decision on appeal in the Second Circuit -- one Shkreli will. . . lose.

नमस्ते