Legal Wrangling Today — Over What Happens When Fosamax® Cases Are Returned To Local Districts For Trial

MRK-Fosamax-08-19-13 I’ll not quote either proposal in much detail — but simply note that Merck’s lawyers, and the plaintiffs’ steering committee lawyers, have radically differing thoughts for the remand process, here.

Do go read it all, if you’d like (a five page PDF letter summarizing the proposals, for Judge Keenan) but here’s a bit:

. . . .The history of this MDL has demonstrated that attrition is likely once cases are subject to discovery. Merck’s proposal, involving a large collection of 100 cases, will provide the Court with valuable information regarding what will happen once cases are subjected to discovery and will give the Court assurance that only viable cases are transferred. Depending on what happens with the first wave of 100 cases, the Court: (1) may determine that it is necessary to continue to subject cases to preliminary fact discovery in the MDL, as the Court has little assurance that the cases are viable; (2) may determine that more or less time should be afforded for the case specific discovery; or (3) may determine that it can remand/transfer, without any discovery in the MDL, several hundred cases with the assurance that they are viable. Through this process, the Court will unquestionably have the opportunity to provide guidance to the parties on how the cases should be transferred under a Section 1404 analysis; and will be able to work through the administrative process of ensuring efficient remands and transfers. . . .

So it goes. We will let you know what Judge Keenan decides to do.


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