Federal Propecia® MDL Update: Scheduling Matters; Procedural Orders

On an otherwise quiet Friday afternoon, I’ll offer bit of a Merck (federal) Propecia® MDL litigation status update, then.
Earler this week, the very able Judge Cogan, sitting in the Brooklyn federal District Courts, entered an order setting the next status conference for July 6, 2016, by agreement of the parties. We will report on anything noteworthy on that day, but it will likely be primarily about ongoing discovery disagreements.

In addition, the court entered a bit of a “procedural” hurdle for Kenilworth. The text is below — but in plainer English, the issue is that Merck removed some number of cases, from the state courts, to the federal court MDL, here. That is permitted if Merck is of diverse (state) citizenship as to all the newly-removed defendant parties. Since quite a few of the cases also contain local health care providers (doctors, etc.) as defendants, and some of those are New Jersey or Delaware citizens, Merck will need to show that those defendants were not properly joined in the (original state-court) cases, by the individual plaintiffs. That is what this is all about — but Merck only has until May 26 to make that showing:

. . . .Accordingly, the Merck defendants are hereby ORDERED TO SHOW CAUSE by May 26, 2016, why each one of the cases containing non-diverse defendants should not be remanded to state court. The response to the Order to Show Cause must show adequate grounds for the dismissal of these defendants and demonstrate grounds for their dismissal. The Merck defendants may either file an omnibus response to this Order to Show Cause under this caption and in each removed case that has non-diverse defendants, or the Merck defendants may file separate responses under this caption and in the particular affected case.

Any non-diverse defendants who wish to be dismissed on the ground of improper joinder shall respond to this Order to Show Cause at the same time as the Merck defendants, and shall make such filing under this caption and in their particular case. Plaintiffs whose cases are subject to this Order, and any non-diverse defendants who believe they are proper parties and wish to have their case remanded, shall respond to Mercks submission within 14 days thereafter, both under this caption and in their particular case. Ordered by Judge Brian M. Cogan on 5/5/2016. . . .

We will keep you posted, but I don’t expect this second bit will be much of a problem for Merck, nor do I expect it will change the likely competing state and federal timelines we earlier laid out. Off now, to a wonderful sunny warm weekend. . . Smile!

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