A Significant Change Of Approach?: Federal Propecia®/Proscar® MDL Bellwether Cases, Overnight

I’ll likely put up a longer, more thoughtful analysis of this development over the weekend — but it would seem that the very capable Judge Cogan, in Brooklyn’s federal District courthouse is (as we were, in early October of 2016) concerned that Merck may have “gamed” its selections — in those so-called first tranche bellwether cases it chose. I say this, because federal Rule sub-section 41(a)(1)(A)(ii) [i.e., the sub-section of the rule cited below] provides that all parties may agree to dismiss a case, without judicial intervention. There would be only one reason a plaintiff would dismiss, after being selected as a test case: and that would be because the defense effectively shot a gaping hole through that case. Thus I posit that this is one of the cases the defense (Merck) chose — and thus, upon learning of the likely fatal defect, plaintiffs agreed to dismiss. On the smallish chance that I am wrong here, I am redacting the name of the plaintiff in the case involved.] I also won’t put up the full six page PDF order until I’ve had time to sleep on the analysis — and sip a root beer over it, sometime tomorrow afternoon. The order was entered on the 17th. . . . just to be clear.

In any event, what appears below is a very unusual bit of “sausage-making” candor, from a preeminent sitting federal District Court Judge — and Kenilworth’s lawyers should regard it as a clear warning against additional “shenanigans” [a la Judge Keegan’s quite similar warnings, of over six years ago now, also in New York federal court — albeit in Manhattan, related to a then-pending Fosamax® ONJ bellwether trial — also involving. . . Merck, and (wait for it) the some of very same law firms Merck is using on this MDL]. And so, this is NOT good, for Merck or its counsel (if my analysis is accurate, of course).

In fact, Judge Cogan has gone so far as to create his own set of questions — [those I will attach as a three page PDF] and impliedly will pick some cases of his own, once he has the answers back. That is. . . telling.

. . . .Yesterday, the parties voluntarily dismissed [Redacted] v. Merck & Co., Inc., 13 Civ. XXXX (BMC)(PK), pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Defendants proffered [Redacted] as one of its three proposed bellwether cases, and I selected [Redacted] as one of the four bellwether cases making up the First Bellwether Tranche.

In reviewing the bellwether briefing, the Court suspected that there had been some effort by each to select cases more favorable to their position, but on balancing those suspicions against the resources already expended getting to this point, the number of years this litigation has been pending, and the bellwether trial schedule in place, I decided that the equitable option was to select two cases from each of plaintiffs’ and defendants’ proposals. Now that one of only four cases has been dismissed, the Court is concerned as to whether the remaining three will either survive, or if they do, whether they will serve the purpose for which bellwether cases are intended.

I will not select a replacement from the remaining two cases the parties proposed.

I have drafted my own questionnaire, which will be docketed as an attachment to this Order, that I believe will give me the necessary information to select viable bellwethers. By December 14, 2016, the parties will jointly file and serve hard copies of the completed questionnaires for the following randomly-chosen 40 cases [Ed. Note: followed by a list of the 40 random cases Judge Cogan selected — also REDACTED here] /s/ Judge Cogan. . . .

Ouch. [Additional September 2016 backgrounder here.] Now, as I walk out tonight, I will be grinning ear to ear — because I have infant sitting duties overnight Saturday into Sunday, and my own lovely, grown daughter will be home for the holidays, now. So, do be excellent to one another. . . I’m out!



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