Exclusive — Propecia® MDL Update: Rule To Show Cause Hearing For Dr. Imperato-McGinley: September 2, 2015

Apparently, Dr. Imperato McGinley did not turn over the voluminous set of documents associated with her finasteride studies, to the plaintiffs — as she promised she would. I would not have predicted/expected this outcome. [My May 2015 backgrounder.]

Apparently, she is being — or has been — represented by one of the in-house lawyers at the New York Presbyterian/Weill Cornell Medical Center. Also apparently, that in-house counsel has responded that the institution — not the doctor — controls custody of the 16 to 40 boxes of clinical trial records thus far pulled from storage. After some wrangling, the in-house counsel has also apparently said that she won’t accept service of a subpoena for the boxes, as a representative of either the doctor, or the institution.

And so, a rule to show cause hearing is now set for September 2, 2015 — in the Eastern District of New York. This will be a hearing as to why the doctor or the institution ought not be held in contempt of court — for allegedly evading the lawful discovery by subpoena process under the federal rules of civil procedure. I understand that there is a lot to look through, but it will be embarrassing if either of these parties is ultimately held in contempt for failure to go through the boxes, and provide relevant documents. The plaintiffs have even offered to cover the cost of that effort. This ought to be entertaining. From the full pleading (a 6 page PDF file), then — a bit:

. . . .The only document furnished by Dr. Imperato-McGinley was a two-page “bibliography.” Moreover, Dr. Imperato-McGinley’s responses strongly suggest, consistent with her counsel’s initial representation that there were at least sixteen boxes’ worth of documents, that numerous responsive documents do exist, but Dr. Imperato-McGinley is claiming not to have “possession, custody, or control” of those documents. Indeed, Dr. Imperato-McGinley is careful to assert, in each of her responses, that she has no responsive documents in her “possession”. . . .

Dr. Imperato-McGinley is, according to Merck, one of the most important individuals in the development of Finasteride, and the development of Finasteride in turn appears to be a major component of her life’s work. It is simply implausible – in fact, it is utterly unbelievable –- that Dr. Imperato-McGinley has no “right, authority or practical ability” to obtain and produce the relevant documents within the sixteen to forty boxes’ worth of documents at issue. Indeed, the fact that these boxes were apparently obtained by the attorney who represents her, reviewed with the assistance of a clerk at the undersigned’s expense, and then simply withheld on the eve of the date set for production conclusively demonstrates that numerous responsive documents were and remain within Dr. Imperato-McGinley’s “possession, custody, or control,” or at a bare minimum in the “possession, custody, or control” of her “representatives. . . .”

So, September 2, 2015 should be an interesting morning in the federal courts in Brooklyn. Stay tuned.

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