Personal Injury Law

Three More Lawsuits (Boles, Jellema, and Spano) Set For Trial, And A Special Master Appointed To Conduct Settlement Talks

(Posted by Tom Lamb at DrugInjuryWatch.com)

There are currently more than 900 Fosamax lawsuits pending against defendant Merck Sharp & Dohme Corp. (?Merck?) in the federal court multidistrict litigation (MDL) concerning the osteonecrosis of the jaw (ONJ) and other jaw injury side effects.

In the fourth quarter of 2011 United States District Court Judge Joseph F. Keenan, who is presiding over IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION, MDL No. 1789 (Southern District of New York), issued two Orders that provided a somewhat mixed forecast for what will be taking place in 2012 as regards this particular Fosamax MDL -- as opposed to a separate Fosamax MDL having to do with femur fractures as the alleged side effect (see NOTE, below).

First, in October 2011 Judge Keenan established the Fosamax - jaw injury / ONJ trial schedule for 2012:

• Boles v. Merck & Co., Inc., 06 Civ. 9455 (JFK), is set for trial on damages on March 26, 2012;
• Jellema v. Merck & Co., Inc., 09 Civ. 4282 (JFK), is scheduled for trial on May 7, 2012; and,
• Spano v. Merck & Co., Inc., 09 Civ. 6948 (JFK), is scheduled for trial on September 10, 2012.

Further, in the October 20, 2011 Order by Judge Keenan -- when declining the requests of both plaintiff and defense counsel to select a replacement case for the Raber bellwether trial that was suppose to have started on November 7, 2011 (but did not proceed as scheduled after this claimant informed the Court that she would not appear for trial) -- we find this observation from Judge Keenan about the current litigation status of this Fosamax - ONJ MDL litigation:

A range of issues common to cases that comprised the original pool twenty-five cases selected for discovery have now been litigated in several cases tried to verdict (Boles, Maley, Graves, and Secrest) and one dispositive summary judgment motion (Flemings). Additionally, the Court will be trying Boles for a third time on March 26, 2012, to determine damages. Therefore, the Court will not replace Raber with any case, and instead the next stage of the Fosamax MDL will concern two cases presenting novel legal and factual issues: [Spano and Jellema].

About a month later Judge Keenan issued a second Order in which he appointed John D. Feerick, Esq., Dean Emeritus of the Fordham University School of Law, as the Special Settlement Master.  From the November 22, 2011 Order by Judge Keenan:

During the past year, the Court has discussed with the parties to this multidistrict litigation the possibility of appointing a special master to conduct settlement discussions of the over 900 cases in this docket....

As Special Settlement Master, Mr. Feerick is authorized to conduct any proceedings permissible under [Federal Rules of Civil Procedures] Rule 53 that are necessary to resolve all or any part of this multidistrict litigation in a fair and efficient manner.

So it appears, from the additional Fosamax trial settings in combination with the initiation of Fosamax settlement discussions presided over by Special Master Feerick, that this federal court Fosamax MDL concerning jaw injury side effects, principally osteonecrosis of the jaw (ONJ), is headed to some type of conclusion during 2012 or soon thereafter.

Stay tuned for further developments as regards these Fosamax lawsuits next year....

NOTE:  All pending Fosamax femur fracture cases filed in the federal court system were transferred in May 2011 to the District of New Jersey and assigned to the Honorable Garrett E. Brown, Jr., for coordinated or consolidated pretrial proceedings. This second Fosamax multidistrict litigation (MDL) case is IN RE: FOSAMAX (ALENDRONATE SODIUM) PRODUCTS LIABILITY LITIGATION (NO. II), MDL No. 2243.

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