Late Friday, the very-able federal trial court Judge John F. Keenan (out of Manhattan’s Southern District of New York), came to the conclusion that the remaining two bellwether cases pending before him would not adequately vet the issues in all of the subcategories of cases pending before him, on Fosamax® ONJ claims.
Specifically, he has yet to hear a case in which the alleged Fosamax ONJ injury arose after Merck’s July 2005 FDA-encouraged label change (but was prescribed prior thereto); and he is looking to hear one in which the first prescription was after the label July 2005 change (ditto, the alleged injury). The two sides have until May 13, 2011 to get together and choose the next two.
From his Friday evening order, then:
. . . .Therefore, Court directs the Plaintiffs’ Steering Committee and Merck to confer and to select, by April 15, 2011, two cases to be tried as additional bellwethers. One case must involve Fosamax use beginning before the July 2005 label change with a claimed onset of injury after July 2005 label change. The other case must involve commencement of Fosamax use and a claimed injury date to both post-date the 2005 label change.
In the event that the parties cannot agree on case select for either or both of the above categories, each party must propose, by letter to the Court, cases for each category of cases on which they have failed to agree. The Court will then randomly select one bellwether case from the six proposed cases, for each unresolved category and promptly inform the parties of its selection. . . .
That will bring the total to seven, in the federal courts. The first of the state court trials, Rosenberg v. Merck, et al., should be wrapping up late this week in Atlantic City, New Jersey. As ever, we’ll keep you apprised.