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Fifth Circuit appeal in Vioxx litigation

(Bumped and expanded from Jan. 15 post.)

Ronald Benjamin, a Binghamton attorney for five plaintiffs, has filed a legally incoherent interlocutory appeal with the Fifth Circuit against an administrative discovery order (Pre-Trial Order No. 28) issued by Judge Fallon. (Agard v. Merck, No. 07-31164.)

PTO No. 28 simply requires plaintiffs who are not participating in the settlement to provide discovery to Merck regarding prescription records and evidence that any claimed injury both occurred and was allegedly caused by Vioxx. Plaintiffs are given until May 1 or July 1 to comply, or will be required to file an order to show cause why their case should not be dismissed. Simply put, it's a put-up-or-shut-up challenge to plaintiffs: if you have a case, show the court what the case is, so that the court doesn't waste time on the thousands of plaintiffs who have no evidence supporting their claims. Nothing remotely unusual about it, but Benjamin is challenging it.

The appeal is based on the faulty premise that a discovery order is a final judgment because the definitions (which are delineated as "For purposes of this order only") will be binding on future litigants in future substantive motions, and thus precludes that litigation.

Even if one were to accept the legally illiterate premise, the appeal's logic is incomplete. If one assumes that Judge Fallon, by applying definitions in a discovery order, has made binding findings of fact, those findings of fact are still interlocutory, because the court has not yet dismissed any case by misapplying the definitions; no appellate jurisdiction rests. If Benjamin cannot comply with PTO Order No. 28, he will have the opportunity to be heard when he files briefing in the order to show cause why his clients' cases should not be dismissed. If he loses that argument, and the case is dismissed, then there is a final judgment, and appellate jurisdiction, but not before then.

Benjamin's other faulty premise is that mandamus is appropriate because the settlement is subject to Rule 23, yet none of Rule 23's procedures were followed. But because there is no plaintiff class, neither side is requesting class treatment, and PTO No. 28 is simply an administrative discovery order, there are no Rule 23 compliance requirements. Thus, the appeal will almost certainly be dismissed for lack of appellate jurisdiction (28 U.S.C. � 1291), as both Merck and the Plaintiffs Steering Committee have requested.

Of course, if Benjamin really believes that PTO No. 28 dooms his cases, he could get Fifth Circuit review by stipulating to that effect with Merck, getting the cases dismissed, having Judge Fallon enter a final judgment, and then getting review of that final judgment (at which point the Fifth Circuit would happily explain that "For purposes of this order only" means "For purposes of this order only"). But that would be malpractice to divest his clients of recovery if any of his clients are eligible to participate in the settlement.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.