As I noted toward the end of last week, the very capable Judge Carol Higbee will preside over the first Fosamax® femur fracture case in the US, starting Monday morning (unless a last second settlement is reached). Merck has a winning record in the state courts of New Jersey, on the jaw death claims, related to Fosamax — but the femur cases are a differing breed of cat. Jaw problems, after extensive tooth decay, are not uncommon — but low energy femur fractures (often of both legs) are unusual — the femur is the largest bone in your body.
This one will be watched closely — nationwide — as a second federal MDL exists to handle the femur cases, and none of those have gone to trial yet. As of year end 2012, there were about 820 cases in the federal MDL — and an another 2,500 or so, pending in various state courthouses. So, all in, there are now over 3,300 femur cases, nationwide. Thus, Monday begins — with Su — the first true “bellwether” femur case. We will keep you posted, as it progresses.
[I’ll note parenthetically that Roche — after losing one of its Accutane class suits — has recently chosen to appeal the issue of whether the same Judge Carol Higbee — an even-handed jurist, in my experience — breached her duty of impartiality, by refusing to grant Roche a motion for a substitute judge. Roche claims she is biased against its lawyers.
I’d fully-expect to see only fair, even-handed and wise rulings from her in the Fosamax femur case,starting Monday — and I suspect Merck’s lawyers will (smartly) say so, in public.] Do stay tuned. The first federal bellwether femur trial will begin April 8, 2013 — in Manhattan. It will be Glynn v. Merck.