Last night, Dechert filed an unusual “letter brief” in MDL 1938 — seeking to dismiss many of the claims made in Polk, et al., v. Schering-Plough, et al. On September 25, 2008, the plaintiffs’ lawyers had submitted a massive consolidated amended class action complaint, in MDL 1938, chiefly for the purpose of satisfying the very-tight federal standards governing allowable pre-trial discovery. The plaintiffs had asked that the newest filing be considered chiefly for the purpose of satisfying the “pleading with particularity” requirements of the federal MDL rules, in Footnote 1 to the September 25, 2008 filing.
Got it? Okay — what is happening in Polk right now is very much like one of those shadow shows — we, the assembled audience (and the Judge), are nominally asked (by Dechert, on behalf of Schering and Merck) to accept the tautology that it would be judicially inefficient to give these particular plaintiffs “multiple bites at the same apple“. Sounds sensible — insofar as our shadow-puppet play goes, right? Right.
To catch a glimpse of the actual puppeteers, though — behind those gauze-screens, we’ll need a little wider-frame of reference. In sum, we’ll need to think about why pre-trial civil discovery is allowed, in the federal courts, more generally.
Civil discovery is allowed (prior to trial) so that a plaintiff may know — in advance — whether his or her case is tenable. It is also designed to allow truly innocent, honest, law-abiding defendants/companies to “clear themselves” quickly, and efficiently — and avoid the burdensome costs and distractions of any protracted, but mostly meritless, litigation.
Dechert — in its letter of last night — would turn this system on its head. Schering (through its lawyers) argues that the Polk MDL 1938 plaintiffs will need to lay out, with exclusivity — on pain of dismissal — right now, and precisely, each of the legal theories upon which they intend to rely at trial — in order to decide whether they will even be allowed to conduct discovery — thus foregoing all other theories that might emerge as the “truth, slowly outs, tailing gossamer veils of ambiguity” — that is, as the facts emerge, from the documents and depositions. And this, before Schering (or Merck) has ever substantively answered one question, under oath, about the-admitted over-18-month ENHANCE disclosure delays.
Dechert would suggest the federal rules of MDL discovery require a sort of random crap-shoot, with a loaded (or perhaps, unloaded) gun, all while wearing a blind-fold, ear-muffs and thick oven-mitts.
The alternative, here? Open discovery based on the theories that seem most plausible at the moment?
Dechert tells Judge Cavanaugh that it would be too-unwieldy to contemplate — but I think not.
If Merck and Schering really are “in the clear“, here — that is, have nothing to hide — then each may turn over the documents, and have their executives offer depositions, free of any fear that some “other” theory of liability would be established in the process.
Said more plainly — there can be no public policy justification for large, supposedly-sophisticated multinational pharma companies hiding any evidence of wrong-doing, when it involves an FDA regulated human health-care drug — complete, voluntary, and willing candor (not wily procedural obfuscation) is the operative standard, here.
These companies are, by dint of our carefully-crafted geopolitical/economic system, handed a truly-collosal set of monopoly-marketing priviledges, in the twin-forms of requisite FDA Approvals, and iron-clad patent-law protections — to sell what are purported to be life-enhancing medicines, largely free of competition, to our citizenry.
The very least we should expect of them is that they promptly — and completely candidly — tell us the entire truth, as they learn it, about whether any particular monopoly good is providing a measurable, outcome-based benefit to us, for the multiple billions of dollars each year we collectively spend purchasing it.
So — the Dechert letter-page snippet (at above right, click to enlarge), gets it exactly backwards. I suspect Judge Cavanaugh will tell them so, eventually.