As many other capable bloggers have indicated, it appears that Organon was involved in some highly irregular efforts to keep one of its drugs, used in the operating suite, on the market, long before Organon was acquired by Schering (1999 through 2002). Ultimately, these marketing efforts failed, and Organon withdrew the product — allegedly, in part, due to increased incidence of mortality — while the drug was employed in the OR.
What interested me about this particular lawsuit — as I read through the docket — was (1) that the same predicate events did result in a criminal investigation, out of the Boston US Attorney’s office (which has since apparently been closed), and (2) that it was, for the vast length of its prior existence, held under a very strict — nay, all-but-air-tight — seal. Click it to enlarge, here:
This sealing — and the February 2008 unsealing — seem unusual, and are thus what I’ll focus on, here, tonight. At one point, there were in camera proceedings held, and orders entered, by the federal District Court in Boston — that the nominal claimant/plaintiff was entirely prevented from learning about — even after the fact.
That is rather extraordinary, even in the otherwise cloak-and-dagger world of federal Qui Tam Act (QTA) suits, brought by individuals (but in the name of the United States of America). Some times, when a criminal indictment is contemplated, but not yet unsealed, the civil QTA matter will be stayed (or “put on hold“) until the indictment issues, or the investigation otherwise closes, without any indictment issuing.
But to hold hearings, and to enter orders, on a claimant’s case — without letting his lawyer be present — or even notifying his own lawyer, after the fact, is in my experience, all but jaw-slacking. That this case stayed sealed for almost seven years, is likewise astonishing. It was transferred down to New Jersey (when the claimant moved there), and into the federal district courts there, about a year and a half ago. More on that in a second.
I am still reviewing all the formerly-sealed documents I downloaded last night, out of Boston, and New Jersey, to try to ultimately sort out what happened — and why, procedurally, this remained in a “Star Chamber” for so long. I’ll update prominently, here, if anything really interesting turns up, in that regard.
But, now — and my punchline, here — the case was unsealed in February 2008 by none other than Judge Cavanaugh’s own Magistrate Falk — the very same Judge Cavanaugh who will now oversee all 33-plus of the consolidated Schering consumer fraud suits in MDL 1938. At first blush, that makes a lot of sense, as he will no doubt, become an expert in the intricacies of Schering’s inner workings — as part of his review of the consumer fraud multi-district litigation.
I have set, in running-text, the entire the order, below, though, to point out that Judge Cavanaugh’s court unsealed the case “sua sponte” — which means “on his own intiative” — or, without anyone moving to ask him unseal it. The Court felt it important to unseal this case. Why? I hope to sort the answer to that question out in the next few days. Until then, take a look at this truly extraordinary order:
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
ORGANON, INC., et al.,
Hon. Dennis M. Cavanaugh
Civil Action No. 07-2690 (DMC)
THIS MATTER having come before the Court sua sponte; and it appearing that this case has been proceeding under seal pursuant to 31 U.S.C. § 3730(b)(2); and it further appearing that the Government has filed a notice of election not to intervene in this matter; and for good cause shown;
IT IS on this 11th day of February, 2008 ORDERED that the complaint in this matter be and hereby is unsealed; and it is further ORDERED that plaintiff serve the complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure.
United States Magistrate Judge
Orig.: Clerk of the Court
cc: Hon. Dennis M. Cavanaugh, U.S.D.J.
Wild. What was up with all of that, I wonder. But, fret not, gentle readers — I’ll go find out. Heh.