This May Be The Final Bellwether Case Trial For IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION, MDL No. 1789

(Posted by Tom Lamb at DrugInjuryWatch.com)

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UPDATE: This just in: $285,000 plaintiff verdict on failure to warn cause of action.

Merck hit with $285,000 verdict in Fosamax trial  (2/5/13, Reuters)

(2/5/13)

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The trial of RHODA E. SCHEINBERG, Plaintiff, vs. MERCK & CO., INC., Defendant, Civil Action No.: 1:08-cv-4119, is scheduled to start on January 14, 2013 in the United States District Court for the Southern District of New York ("SDNY")

United States District Court Judge Joseph F. Keenan, who is presiding over IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION, MDL No. 1789 (SDNY), will be the judge for what may be the final bellwether case trial in this so-called Fosamax – ONJ / Jaw Injury MDL.

Before proceeding, we point out that all pending Fosamax femur fracture cases filed in the federal court system were transferred in May 2011 to the District of New Jersey for coordinated or consolidated pretrial proceedings. This second / separate Fosamax multidistrict litigation (MDL) case is IN RE: FOSAMAX (ALENDRONATE SODIUM) PRODUCTS LIABILITY LITIGATION (NO. II), MDL No. 2243.

As background, in February 2011 Judge Keenan ordered that there will be two additional bellwether trials conducted in this Fosamax MDL. As seen below, on March 28, 2012 Judge Keenan selected Scheinberg v. Merck as the next Fosamax case to be tried and set the trial date for January 14, 2013.

According to the May 1, 2008 Complaint filed for the Scheinberg case, Plaintiff Rhoda Scheinberg "used FOSAMAX from approximately October 25, 2000 through approximately September 2006." The Complaint goes on to allege that:

As a result of the defective nature of FOSAMAX, persons who were prescribed and ingested FOSAMAX, including Plaintiff RHODA E. SCHEINBERG, have suffered and may continue to suffer severe and permanent personal injuries to the jaw bone, including osteonecrosis of the jaw and other diagnoses of irreversible damage to the jaw.

Osteonecrosis of the jaw, often referred to as "ONJ", is a serious medical event and ONJ can result in severe disability for those who develop this painful condition.

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Notably, the Scheinberg lawsuit is the only federal court Fosamax MDL ONJ case currently set for trial.

Going back to the February 2011 Order by Judge Keenan:

The Court believes it is necessary to conduct two additional bellwether trials involving issues not yet litigated, before considering remand of the MDL to the transferror courts…. One case must involve Fosamax use beginning before the July 2005 label change with a claimed onset of injury after the July 2005 label change. The other case must involve commencement of Fosamax use and a claimed injury date that both post-date the July 2005 label change. [emphasis added]

As indicated above, the Scheinberg trial fits into the first category, with this plaintiff having started her Fosamax use in October 2000.

In a March 29, 2012 Order, however, Judge Keenan later cast some doubt on whether there would be another Fosamax – ONJ trial after the Scheinberg case:

The Court has previously discussed with the parties the Court's belief that at least one additional bellwether trial should be conducted prior to any consideration of a motion to remand to the transferor courts, to address issues arising in cases where the alleged injury date is after the July 2005 change in the Fosamax label….

On March 28, 2012, in open court, Scheinberg v. Merck & Co., Inc., No. 08 Civ. 4119 (JFK) , was first selected by lot…. [emphasis added]

We expect, based on earlier Fosamax – ONJ trials, that it will be at least a month before we will get a jury verdict for the Scheinberg v. Merck trial.

Of course, to the extent that we get reports of significant developments along the way, we will let you know, here.

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