JEREMY VOGLER ET AL VS. MERCK & CO., INC. ET AL

SF Superior Court - Asbestos Law & Motion - CGC26277403 - June 30, 2026 Hearing date: June 30, 2026 Case number: CGC26277403 Case title: JEREMY VOGLER ET AL VS. MERCK & CO., INC. ET AL Case Number: | | CGC26277403 | Case Title: | | JEREMY VOGLER ET AL VS. MERCK & CO., INC. ET AL | Court Date: | | 2026-06-30 09:00 AM | Calendar Matter: | | Notice Of Motion And Motion For Trial Preference | Rulings: | | On Asbestos Law and Motion Calendar for Tuesday June 30, 2026, in Department 502, Line 5.

Plaintiff's Motion for Order Granting Preference in Setting Case for Trial, and Extending Discovery Cutoff is GRANTED under C.C.P. 36(d) and (e). Joint Opposition filed by Defendants CVS Pharmacy, Inc; Longs Drug Stores California, LLC; Safeway Inc; Walgreens Co; Merck & Co; and ViJon, LLC. Reply filed.

Under section 36(d), the Court finds that Plaintiff Vogler's current medical documentation meets the clear and convincing standard. Defendants argue that Dr. Felsher's declaration is insufficient because he is not Mr. Vogler's treating physician and because the medical records themselves do not contain a treating physician's opinion that Mr. Vogler is unlikely to survive beyond six months. This argument is unpersuasive. A declaration from a qualified physician who has reviewed Plaintiff's medical records and formed an opinion regarding Plaintiff's prognosis satisfies the requirement of "medical documentation."

Moreover, Plaintiff's March 31, 2026 treatment records reflect that Mr. Vogler denied any acute complaints, was tolerating the immunotherapy regimen fairly well, and was walking 60-90 minutes per day at a moderate pace without cardiac or pulmonary symptoms. (See Defense Exh. A at p. 1 dated March 31, 2026.) These facts are relevant to the Court's exercise of discretion, but they do not defeat the motion. Plaintiff correctly notes that the statute requires only "substantial medical doubt of survival beyond six months," not that Mr. Vogler appear gravely ill. (Reply at p. 5 ["The fact that Mr. Vogler can work, travel and participate in some activities in a substantially reduced capacity does not negate the substantial medical doubt of his survival beyond six months"]; Code Civ. Proc. 36(d).)

Here, Plaintiff's partial response to treatment does not eliminate the substantial medical doubt of survival that mesothelioma itself creates. (Declaration of Dr. Dean Felsher at 29 ["In my professional medical opinion to a reasonable degree of medical certainty, substantial doubt that Mr. Vogler will survive more than six months beyond the date of this declaration"]; at 30 ["Additionally, Mr. Vogler's disease has progressed already, as he has documented invasion into this lymph nodes"[.) Accordingly, the motion is granted.