543 F.3d 178

3rd Cir.

2008

Jane Doe v. C.A.R.S Protection Plus, Inc.; Fred Kohl

Nos. 06-3625, 06-4508

United States Court of Appeals, Third Circuit

Sept. 9, 2008

WD/PA Civil No. 01-cv-02352, District Judge: The Honorable Maurice B. Cohill, Jr.

analysis. Here, the lack of a significant response from the market to the FDA‘s warning letter does not mean that the Emperor was not walking down the street with no clothes on. It merely means that the analysts saw the emperor‘s new clothes as Merck described them—not as reality presented.²¹

Based on the foregoing, I submit there were sufficient “storm warnings” more than two years prior to the filing of appellants’ complaint. At a minimum, I believe the FDA‘s September 17, 2001, warning letter constituted more than sufficient “storm warnings” to put appellants on inquiry notice of their claims, particularly since appellants fail to demonstrate either that they conducted a diligent investigation within two years of the accrual of such “storm warnings” or that they were unable to uncover pertinent information during that time period. Accordingly, because appellants waited over two years to bring suit, I conclude that their claims were filed out of time and were properly dismissed by the District Court.

Jane Doe v. C.A.R.S Protection Plus, Inc.; Fred Kohl

C.A.R.S Protection Plus, Inc., Appellant at No. 06-4508.

Gary M. Davis, Pittsburgh, PA, for Jane Doe.

C.A.R.S. Protection Plus, Inc., Murrysville, PA, pro se.

Before: RENDELL and NYGAARD, Circuit Judges, and McCLURE,¹ District Judge.

Jane DOE, Appellant at No. 06-3625 v. C.A.R.S PROTECTION PLUS, INC.; Fred Kohl.

ORDER

MARJORIE O. RENDELL, Circuit Judge.

The panel recently entered three orders in connection with this appeal: the order vacating the grant of summary judgment, remanding the case to the District Court; an order granting a motion “to proceed under seal and in pseudonym“; and an order denying intervention sought by several publications desirous of challenging the sealing of the case, in which we stated “movant may pursue this matter with the District Court upon remand“. We believe we should clarify the scope of the remand regarding the sealing order. It is not our intention that the order we entered sealing the record on appeal would prevent the District Court from considering this issue anew; indeed, our order suggesting further pursuit of this issue was intended to reflect our view that the District Court was the better court in which this issue could be litigated, since it could hold a hearing, and had done so previously on this very issue at the outset of the case, and since the record on appeal consists in large measure of the record made in the District Court. The issue of the propriety of the continued sealing of the case now that it will proceed to trial is an important one; the District Court should feel free to decide this issue unfettered by our rulings to date.²

Notes

Honorable James F. McClure, Jr., District Judge for the United States District Court for the Middle District of Pennsylvania, sitting by designation.

Judge Nygaard declines to join this order because it was not requested by either party and because he considers it unnecessary.

Regardless, Merck‘s stock price did decline sharply in the months leading up to October 9, 2001, as the public controversy about Vioxx raged. From January 1, 2001, to October 9, 2001, Merck‘s stock price declined by $24.32 or 27.4% App. at 1770-73. As appellants themselves alleged, “Merck‘s stock price began its slide in approximately January of 2001, and continued and worsened after August of 2001 when the VIGOR cardiovascular data was presented more fully in the [JAMA article].” App. at 1225 (emphasis added).