Merck Has Been On Trial, In Federal Court In New Jersey, Since April 27, 2015

‘Lo these past almost four years, I have been quite circumspect about opining upon, or even covering, these gender and pregnancy discrimination allegations, for a host of reasons. Honestly one of those reasons had to do with Merck’s generally stellar record on these fronts (especially as compared to that of legacy Schering-Plough).

But as of last week, the mainstream legal media (AmLaw and Law360) were reporting (approvingly) on Merck’s motion for judgment as a matter of law, at the close of the plaintiffs’ case. It has now taken almost three full weeks of trial — to reach the end of the plaintiffs’ evidence. And last week, Merck essentially said “even if every bit of that is true. . . so what?” The plaintiffs have not — as a matter of law — made out a good discrimination claim, according to Merck’s legal team — on gender or pregnancy status.

Let’s take a moment here then — and look back. Back in 2012, the very able Judge Stanley Chesler ruled that the plaintiffs possessed enough evidence to proceed to trial. Here is a bit from that, in late in 2012 (just to balance-off the legal MSM reporting, of last week):

“. . . .While this might appear to be a smoking gun statement, it is not. According to the interrogatory, this statement was in regard to the position of Interim VP Global OE position, and not the VP Global OE position. As Defendants note, Plaintiff has expressly abandoned any claim for failure to hire for the Interim VP Global OE position, and the claim for failure to promote concerns only the VP Global OE position. Nonetheless, this evidence is probative of the proposition that Scalet considered Plaintiff’s maternity leave to be an important factor in making decisions about her employment – and, more importantly, a negative factor. . . .”

I will confidently predict that Judge Chelser will not grant Merck’s motion above. In fact, he won’t rule prior to mid-June on it. So, Merck is presently putting on its defense. That could take a week or more. We will keep you informed. I do expect that this will be a very close case — and the outcome is (in my opinion) far from predictable, even if we were all sitting in the courtroom each day. So we will all watch, wait and see. Sleep well, lil’ babies. . . those in-, and out-side all our villages’ various strong, loving and graceful mommas.

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