by Bob Snee
Latest update on the filings in the Merck Whistleblower lawsuit claiming fraud in connection with the mumps portion of the MMR vaccine.
After nearly 10 years of stalling and delaying tactics, the case has finally proceeded to the point where the merits of the claim are about to be decided.
Both sides think there are no disputed issues of fact and that they are entitled to judgment in their favor, having filed motions for summary judgment on October 25th. If there are no material fact issues, there is nothing for a jury to decide and a judge can rule that based on the admitted and undisputed facts as well as the law, a party should win (or lose) its lawsuit.
The whistleblowers have filed a motion for judgment against Merck, and Merck has filed three motions claiming it is entitled to summary judgment. The first motion filed my Merck is attacking the whistleblower’s theory of their claim based on an efficacy-based theory of falsity. The second motion is only against one of the whistleblower’s, Stephen Krahling, and the third motion, claims that all of the whistleblower’s claims are barred by the statute of limitations (whether or not the claims are true and valid).
Each side will have an opportunity to try to defeat the other’s motions for summary judgment by submitting Declarations and legal memorandum that either creates a disputed issue of fact, which would then need to be decided by a jury, or by showing that even if all the facts are true, the law does not support the position of the party making the summary judgment motion.
The contents of the documents in connection with these motions are being filed under seal, so other than the name of each document being filed, we don’t have an opportunity at this time to know what either side is saying regarding the facts that aren’t is dispute, or how the law applies to those facts.
After the motions are fully briefed by both sides and oral argument is likely scheduled, there are three possible outcomes. Either the case could be decided in favor of the whistleblowers, the case could be decided in favor of Merck, or there could be disputed issues of fact which would require the case to go to a jury trial to decide the facts.
The following are the titles of the 4 documents containing the Motions for Summary Judgment:
RELATORS' MOTION FOR SUMMARY JUDGMENT AGAINST MERCK filed by STEPHEN A. KRAHLING, JOAN A. WLOCHOWSKI
First MOTION for Summary Judgment on Relators' Claims Based on an Efficacy-Based Theory of Falsity filed by MERCK & CO.'
Second MOTION for Summary Judgment Against Relator Krahling filed by MERCK & CO
MERCK'S THIRD DISPOSITIVE MOTION FOR SUMMARY JUDGMENT ON TIME-BARRED CLAIMS AND DAMAGES