Federal Propecia®/Proscar® MDL Update: My Guess? Being A Bellwether Plaintiff May Entail Deeply Embarrassing, Occasionally Public, Disclosures

Again, another one of the first bellwether tranche cases has been closed out by mutual agreement, during the initial fact discovery phase. This makes three, by my unofficial count.

I suspect (see bolded portion in blue below) the dismissals are less about the plaintiffs not having the requisite evidence — and more about the invasive nature of the discovery questions that Merck plainly has a right to ask of each plaintiff. After all, the claimed injury is lasting erectile dysfunction — the inability to become firm, for sexual relations. It is clear that — even if large portions of the discovery are filed under seal, the asking of the questions, under oath, on videotape, in a room full of lawyers — in depositions — would be extremely traumatic for many men of even more than regular (at least psychological) courage. [To that end, I’ve removed case names, wherever they previously appeared, on my site — as of this morning.]

Add to that the chance that the problem becomes public gossip in one’s neighborhood, and we can readily see why some men might bow out. Here is the latest order entered just this morning, in the federal courthouse in Brooklyn — but the first few bellwether trials are still on schedule, in my estimation here:

. . . .With the parties having voluntarily dismissed [Redacted Name] v. Merck & Co., Inc., 14 Civ. 20XX, one of the cases in the First Bellwether Tranche, each side is ordered, consistent with paragraph 3 of PPO 15, to submit two cases from the Case Pool listed in paragraph 1 of PPO 15 so that the Court may select a replacement bellwether.

The parties are to submit their selections by 2/10/2017. The parties are to submit their filings as letters, not motions, and each side is limited to 5 pages single-spaced.

If the parties need to file their letters under seal, the parties should not file a separate motion to file under seal: The Court grants both parties leave to file under seal if the content of the letters so require. Finally,considering what happened in the [Redacted Name] case, plaintiffs’ counsel is strongly urged to fully explain to each individual plaintiff the burdens of being a plaintiff in lawsuits of this nature.

Ordered by Judge Brian M. Cogan on 2/1/2017. . . .

Now you know. As I depart for points westerly tomorrow evening, I’ll mention that it seems there is renewed talk of a repatriation measure/tax holiday — under 45’s incoming administration. That was likely thoroughly-discussed yesterday in DC with POTUS 45 and with Mr. Frazier in attendance, on his left (according to media photos thus far released).

As we’ve repeatedly mentioned, Apple now holds about $260 billion in cash overseas, while Merck holds around $75 billion overseas (Pfizer now holds over $90 billion). If the notion is to give a tax holiday on the cash return — it should be tied to spending the cash on creating new jobs, and improving infrastructure, in the US. That was US Senator Bennett’s proposal (he’s out of Colorado — search “Colorado compromise” in the search box above right, for more on it) — but it died in 2014. I may write a bit on this notion, this coming weekend, time permitting. Onward.



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