On Fosamax® “Atypical” Claims: Lone Pine Order — New Summary Proceedings To Dismiss — For Non-Compliance With Prior Court Orders

The very able Judge John F. Keenan, sitting in Manhattan’s federal District courthouse, just entered an order — revising the procedures applicable to plaintiffs who’ve failed, thus far, to comply with his Lone Pine orders. In the latest batch (S through Z), perhaps 30 or so plaintiffs’ groups were non-compliant. [My February 2013 backgrounder.]

It is clear that the able judge is being very careful — to allow plaintiffs to preserve their rights — and correlatively, directly sanction any attorney who is not communicating with his or her client on these important topics. Here is the order, in full:

. . . .It is hereby ORDERED as follows:

1. If any plaintiff identified in Exhibit A does not provide the required information and documents within thirty (30) days of the date of entry of this Order, this Court, upon motion, may dismiss the delinquent plaintiff’s action with prejudice and/or impose other sanctions, which may include monetary penalties, based upon that plaintiff’s willful failure to comply with the Court’s discovery orders and/or inability to come forward with sufficient proof of his or her claim.

2. Dismissals made under this Order will dismiss the plaintiff’s case in its entirety (as to all named defendants) and will be on the merits, with the intent that any further claim by a dismissed plaintiff arising as a consequence of his or her treatment with Fosamax shall be precluded.

3. The Court also may issue an injunction pursuant to the All Writs Act, 28 U.S.C. § 1651, enjoining plaintiffs and their counsel from re-filing in any court any claim or action so dismissed.

4. Any attorney who represents a plaintiff who has not served the required information and documents and as to whom a motion to dismiss has been made as provided herein, no later than twenty-one (21) days after the date thereof, shall provide a copy of this Order to that plaintiff and advise that plaintiff of the sanctions and/or judgment that may be imposed. Sanctions may be imposed upon any attorney who fails to notify his or her client as provided herein and the Court may bring such failure to the attention of disciplinary authorities in any state.

5. If counsel for any plaintiff identified in Exhibit A contends that he or she in fact has served the required information and documents, such counsel shall notify the Court and Defendants’ Counsel of that fact within twenty-one (21) days of the date of entry of this Order, together with the date of such service and the name and address of the person upon whom it was served and, upon request, a copy of the necessary documents. To the extent any of the above directives are in disagreement with the November 20, 2012 Opinion and Order, this Order shall govern.

(Signed by Judge John F. Keenan on 7/9/2013) Filed In Associated Cases: 1:06-md-01789-JFK-JCF et al. . . .

Do stay tuned — and if your client is claiming atypical injuries — be sure their written expert report(s) (with all the requisite details) have been filed with the court. That is the central requirement of the standing Lone Pine order. We will keep the readership posted.


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