Despite The Errant Earlier AP Reporting, Merck Has NOT "Turned Up The Heat" -- In Its Specious Federal Suit Against CMS/HHS...

What is lamentable is that the usually excellent FiercePharma acts as an unblinking stenographer for this nonsense. Not all outlets have access to sophisticated federal litigation experts, true -- but Fierce. . . does. Ask them, folks.

Here's what has actually happened as of Tuesday evening. Merck filed a motion saying no fact-finding is needed for the court to rule.

That motion will fail, on its face. There is no scenario where any competent federal judge can rule in Merck's favor without finding that a taking has occurred, or that Merck is being coerced by the particular, and amended, rules allowing CMS and HHS to negotiate drug pricing. Those are quintessentially FACTUAL questions.

Questions for which (and against which) evidence must be introduced, and evaluated. By a finder of fact -- either a jury or a judge. In short, for which a trial must be had. So Merck's motion is a mere formality. It is a loser -- just as a motion by the government saying it should win just on applicable law, and that there would be no set of facts Merck could prove that would let Merck win. . . would also be a loser. At least some evidentiary hearings will be needed -- fact-finding hearings.

So it goes. But this much from Fierce is accurate:

. . .Christen Linke Young, deputy assistant to the president for health and human affairs, told reporters on a conference call that there is “nothing in the Constitution that prevents Medicare from negotiating lower drug prices. . . .”

Onward. . . smiling into a clearing morning sky -- after various tornadoes touched down here overnight -- missed my holdings, though. Grin.

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