Analysis: Judge Keenan’s Latest Fosamax® MDL Remand Order Increases Likelihood Of Global Settlement

On a quiet pre-holiday Friday, Judge Keenan entered an MDL remand process order, setting the mechanics for various of the Fosamax® cases to be returned to the local federal district courthouses, for trials. [Judge Keenan’s order includes the Boniva® cases as well — despite earlier GSK and Roche objections.] Here is the 3 page PDF order.

He set the process so that 200 cases at a time will go back — Merck only wanted to deal with 100 at a time. The plaintiffs suggested 300 at a time. Judge Keenan chose King Solomon’s path — split it down the middle.

Accordingly, the economic burden to Whitehouse Station, of potentially preparing all 200 cases for trial simultaneously is about double what Merck had previously anticipated. The process could easily become burdensome, and even if Merck thinks it can win 5 out of each 7 cases (based on prior bellwether results), the numbers of dollars to be spent will start to pile up — in favor of some overall global settlement, rather than spending vast sums on legal fees (and losing some trials) for potentially the next decade, or more.

At least, that’s my assessment. Here is a Reuters report — and a bit:

. . . .”It’s a big deal as it changes the cost paradigm for Merck exponentially,” said Timothy O’Brien, a partner at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor and lawyer representing Fosamax plaintiffs. . . .

The cases before Keenan comprised roughly one-fifth of the 5,075 lawsuits pending nationally in federal and state courts related to Fosamax, a one-time blockbuster medication.

Keenan’s order on Friday came after mediation to resolve 370 cases broke down two weeks ago. O’Brien’s law firm and another firm represented plaintiffs in those cases.

Another 104 lawsuits brought by another firm could have been added to the talks if a deal on value was reached, [plaintiffs’ lawyer] O’Brien said. . . .

We will — of course — keep you posted.

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