In Trenton, New Jersey, the very able US District Court Judge Joel Pisano will preside over picking a jury starting Monday the 8th — in the first Fosamax® femur fracture “bellwether trial” — in the federal court system.
Based on the exchanges of Daubert letters among the lawyers this week, I’d say that Merck will (unfortunately) have its hands quite full — in trying to exclude evidence about the Glynns’ failure to warn claim — related to “atypical” femur fractures. Christy Jones, Merck’s trial counsel here, is a very capable defense lawyer (as I know from first-hand experience), but she’s in for some tough sledding: New York state law on failures to warn in similar circumstances (Glynn’s case is controlled by New York state law, at least as to the claim of fracture injury/failure to warn portion of this federal bellwether trial) is very plaintiff-freindly (especially as compared to New Jersey state law). In addition, I think the plaintiffs have the better argument, for admissability of the evidence, here. But Judge Pisano hasn’t ruled on all the motions to exclude, just yet, so I won’t get into any of the details of the “to and fro” — as it is possible a potential Fosamax juror might see this website.
In other news, last month, the Su v. Merck trial (in New Jersey state court) had to be stopped due to Mrs. Su’s heart attack — but all agree, not related to the Fosamax allegations. It is not clear when, or whether, Su will be re-tried.
In Rhoda Scheinberg’s recently-completed federal ONJ case (she won $285,000) — Merck has filed a motion for judgment as a matter of law, post the jury award, and has indicated if it loses that motion — it intends to appeal to the Second Circuit Court of Appeals.
Thus, at the moment, Mrs. Scheinberg’s lawyers are prevented from recovering their bill of costs related to the litigation, all as allowed by federal rules — until the Merck appeal is decided — even though the Scheinbergs won — at trial.