update RLG Heeds Fosamax MDL Court’s Order Designed to Weed Out Bad Cases

The Rottenstein Law Group, which represents clients with claims stemming from the severe side effects of the drug Fosamax, is taking all necessary measures to comply with the latest order of the federal Fosamax MDL court.

As the United States District Court for the Southern District of New York prepares to wrap up the federal Fosamax multidistrict litigation matter In Re: Fosamax Products Liability Litigation (No. 06 MD 1789), Judge John F. Keenan has issued an order designed to weed out those cases “more likely to be dismissed… as they undergo closer scrutiny.” Defendant Merck & Co., Inc., manufacturer of the embattled osteoporosis drug, made a third request of the court for a so-called “Lone Pine” order. Judge Keenan had denied Merck’s previous requests, but he granted this one.

By order filed November 20, 2012, Judge Keenan is requiring each claimant whose federal lawsuit is part of the Fosamax MDL but who has not alleged that he or she experienced osteonecrosis of the jaw (ONJ) or osteomyellitis (as a result of having taken Fosamax) to produce certain information and documentation to identify specifically the alleged injuries suffered and to substantiate, with expert testimony, to a “reasonable degree of medical certainty” the claim that the injuries were caused by Fosamax.

Merck had argued to the court that a “Lone Pine” order will ensure that only those cases with qualified plaintiffs—that is, those with real injuries likely caused by Fosamax—will remain in the MDL. Merck noted that of the 1,094 cases in the MDL, 138 have already been dismissed and 11 of the 35 cases set for case-specific discovery were dismissed. Moreover, 7 of 12 cases set for trial were dismissed.

The Plaintiff’s Steering Committee opposed the motion, arguing that the MDL court has “fulfilled its mission” and should be adopting an “exit plan” rather than issuing further discovery orders. The Court disagreed, finding that a limited order would help identify “spurious or meritless cases… lurking in the some 1,000 cases on the MDL docket.” The primary purpose of a “Lone Pine” order, Judge Keenan wrote, “is to eliminate meritless cases.” In the event the parties reach a settlement, the opinion accompanying the order states, “the elimination of spurious claims will ensure that only plaintiffs with meritorious cases are compensated. If the MDL concludes without settlement, and cases are transferred back to their home districts, [the order] will ensure that the home districts receive only viable cases.”

Judge Keenan noted that the order does not require claimants to produce new documents or information, but rather to “produce information they should already have.” The court notes that during the six years that the Fosamax MDL has been in existence, Merck has “produced over 11 million pages of documents and submitted 24 company witnesses to deposition.” The order issued, Judge Keenan wrote, “[will] impose a minimal burden on plaintiffs.” The productions will be staggered, with claimants submitting documents in three waves, the last of which is due by June 20, 2013. Any claimant who fails to comply with the order will then have to convince the MDL court not to dismiss his or her action with prejudice.

Although the Fosamax MDL is six years old, the Rottenstein Law Group still urges anyone whose friend or relative has been prescribed Fosamax or another osteoporosis drug to reach out to that person and recommend that he or she speak to a qualified personal injury lawyer.

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