Resetting The Table — For Likely The LAST Three Fosamax® ONJ Bellwethers

I suppose the take-away — from this particular updating item is that Mrs. Sarah Raber needs to take care of her husband (a man who needs essentially day-by-day care, and there is no one else to take her place). As such, Mrs. Raber’s lawyers have presented a novel Americans with Disabilities Act letter-petition, to “re-transfer” her federal Fosamax® ONJ case back down to Florida, nearer her point of care for her husband.

Manhattan — hotels, and the big city hospitals, would be an extremely difficult health care-providing environment for the now-elderly Mrs. Raber, during the month or more that she might have to reside there, during the pendency of the ONJ bellwether trial, her lawyers argued.

That letter petition was twice denied by Judge John F. Keenan in Manhattan. Whether I agree or disagree with the judge’s rulings is now immaterial — as Mrs. Raber has found another way to set her trial in a venue nearer the point of care for her husband — albeit likely in the state courts of Florida.

Late last week, Judge Keenan dismissed her case with prejudice in the federal District Courts. That generally means the case may not be refiled in the federal system. Here is the rest of the scheduling order — as I’ve earlier indicated, Boles III is up next — on damages alone:

. . . .The parties’ requests to replace plaintiff Sarah Raber’s case with another case from the Fosamax MDL are both denied.

Boles v. Merck & Co., Inc., 06 Civ. 9455 (JFK), is set for trial on damages on March 26, 2012, at 10:00 a.m.

Jellema v. Merck & Co., Inc., 09 Civ. 4282 (JFK), is scheduled for trial on May 7, 2012, at 10:00 a.m.

Spano v. Merck & Co., Inc., 09 Civ. 6948 (JFK), is scheduled for trial on September 10, 2012, at 10:00 a.m. As discussed above, the parties are directed to submit pretrial scheduling orders for both Spano and Jellema.


Dated: New York, New York

October 20, 2011. . .

So, to be clear, this means that Sarah Raber is now free to refile her Fosamax ONJ case in the state courts in Florida — and I expect she will do so shortly. And we will keep you posted, as the Boles III damages re-trial approaches — in March of 2012.


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