Fosamax® ONJ Bellwether Trials Update: Raber Appeals; Jellema Dismissed


You may recall that last month, Judge John F. Keenan, sitting in Manhattan’s federal District Court, denied Mrs. Raber’s rather novel letter requests to re-transfer her Fosamax® ONJ bellwether case to Florida, on various Americans With Disablities Act grounds (she is the primary care-giver for her husband, and cannot apparently afford to pay to do so — in Manhattan — for what will almost certainly be a solid-month of daily trial appearances, there). Below is the as-filed notice of appeal to the Second Circuit, on that case. Judge Keenan twice denied Mrs. Raber’s request for a reasonable accomodation here, and dismissed Raber with prejudice.

Separately, Jellema (another case set as an agreed bellwether ONJ trial) was dismissed with prejudice last week by Judge Keenan. So, the only two remaining bellwether trials — at the moment — will be Spano (trial date: September 2012), and the damages trial before a jury in Boles III (trial date: March 2012).

. . . .Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: (1091 in 1:06-md-01789-JFK-JCF, 151 in 1:06-cv-06295-JFK) Notice of Appeal. Filed In Associated Cases: 1:06-md-01789-JFK-JCF, 1:06-cv-06295-JFK. . . .

We will keep you posted, but I expect that Mrs. Raber will get some relief from Judge Keenan’s dismissal — in the Second Circuit. It may be that she will be returned to the state courts, if she cannot meet the inclusion criteria for Manhattan MDL treatment, but it would seem an oddly mis-shapen outcome — to deny (with finality) Mrs. Raber her day in court (federal or state), due primarily to her lack of adequate monetary means to pay separately for the care of an ill-husband, at least as I understand the schema contemplated by the ADA.

Interestingly, there is also some suggestion, in the Manhattan public courthouse electronic records, that an experimental “model project” — essentially, a new set of local trial rules will now be applied to the remaining bellwether matters, and the Fosamax MDL, generally. More on that, as it develops.

So, do stay tuned.

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