Update: Between $70 Million, And Over A Half Billion, Sought — Merck v. Merck Name Spat In New Jersey Federal District Court…

Since we generally don’t have online public access to deposition transcripts (in any sort of civil litigation, as a matter of course), and even in the more accessible federal litigation PACER system, the rudiments of daily practice are shielded from public view — this is. . . what we would call “a hidden gem” — a diamond (even if “in the rough“) — five page letter. So we will post on it, on a quiet lazily snowy Friday afternoon. [Backgrounder here; same dispute’s British version here.]

In a PDF of the five page letter filed this week, we see that “our” Merck’s theory of damages — for the alleged confusion caused by German Merck’s use of that name, in materials reaching the United States and Canada — runs from a maximum of $521 million, to a minimum of a little over $70 million. Those are admittedly higher stakes than we had surmised. Here’s the bit:

. . . .Professor Hanssens’ second role as a damages expert is equally pivotal in this case. He has proffered two distinct damages theories: (1) Defendant must disgorge the entirety of its $521 million in profits since 2015, regardless of any connection to the use of MERCK or the claims at issue, and (2) Plaintiffs allegedly lost sales of approximately $70 million entirely due to Defendant’s alleged use of “Merck” on fertility drugs. The extraordinary — and unreasonably — large amount of damages by itself presents good cause for Defendant to seek sufficient time to depose him as to each of the bases for these figures and how he arrived at them. . . .

It came up in the course of an argument over how many hours US Merck’s damages expert could be forced to sit in a chair and answer German Merck’s questions. But now you now.

For the record, I would expect nothing near the entire aggregate bolus of the post 2005 net profits of the German Merck to ever be actually awarded — should this ultimately go to trial (and not settle). But we do now know it is decidedly high-stakes poker. Even at something below $70 million.

Onward — to a blustery cold, but fun-packed snow-filled weekend, with a toddler in tow. Grin!


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