Fosamax - Osteonecrosis Of The Jaw (ONJ) Litigation Threatening To Become Very Active And Costly For Merck If Settlement Negotiations Continue To Fail
Update: "Judge Delays Wind-Down In MDL Over Merck's Fosamax" (10/4/13, Law360) [subscription required]
A New York federal judge on Thursday delayed the transfer of hundreds of lawsuits in multidistrict litigation over jaw injuries allegedly caused by the bone drug Fosamax in order to give the plaintiffs and Merck & Co. Inc. time to potentially reach a settlement.
Amending his August remand order sending the suits back to their home courts starting Nov. 1, U.S. District Judge John Keenan said the transfers will instead begin Dec. 2. Subsequent transfers will be made on the first business day of every month...
As seen in Merck's SEC filing for the second quarter of 2013, at page 17, the number of Fosamax - jaw injury cases (as opposed to femur fracture as the drug injury) was a bit above the 1000 count level in the summer of 2013:
As previously disclosed, Merck is a defendant in product liability lawsuits in the United States involving Fosamax (the “Fosamax Litigation”). As of June 30, 2013, approximately 5,075 cases,.... In approximately 1,135 of these actions, plaintiffs allege, among other things, that they have suffered osteonecrosis of the jaw (“ONJ”), generally subsequent to invasive dental procedures, such as tooth extraction or dental implants and/or delayed healing, in association with the use of Fosamax....
Since that corporate information from Merck was released, the fate of those 1000 plus cases has taken a dramatic turn, as set forth below.
From an Order filed August 29, 2013 by United States District Judge John F. Keenan, who is presiding over IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION, MDL 1789, where the vast majority of those pending ONJ cases are filed:
The Court has reviewed the joint letter submitted by Defendant Merck and the Plaintiffs' Steering Committee ("PSC"), and is in agreement that this MDL is ripe for remand and transfer. The Court has tried five cases as bellwethers and general expert discovery has taken place. In this Court's view, all that is left for each of the cases in this MDL is case specific discovery and trial. To that end, the district courts to which these cases will be remanded will have the benefit of this Court's omnibus Daubert ruling as well as numerous other opinions issued throughout this litigation....
Therefore, the Court hereby ORDERS that 200 cases per month will be remanded to their home districts, beginning with the oldest cases.... The Court's first order suggesting remand will be entered on November 1, 2013 (unless a settlement has been reached), with subsequent orders to be entered on the first of the month thereafter until the process is complete....
What this August 2013 Order by Judge Keenan means is that the Fosamax - jaw injury / ONJ federal court MDL will effectively be disbanded over the next six months and, as a result of this turn of events, there is the real possibility of Merck's defense lawyers having to be in numerous trials in different federal district courts across the U.S. each and every month for a couple of years, at least.
Going back to the corporate document Merck submitted to the SEC before Judge Keenan's August 2013 Order, we get this "per usual" position statement:
Discovery is ongoing in the Fosamax ONJ MDL litigation, the New Jersey coordinated proceeding, and the remaining jurisdictions where Fosamax ONJ cases are pending. The Company intends to defend against these lawsuits.
One wonders, however, whether the recent significant move made by Judge Keenan has put some ideas into the head of Merck and its attorneys that perhaps the time has come to establish a settlement plan by which the Fosamax - ONJ litigation can be resolved, soon -- as opposed to having to incur the considerable time and money costs that will be associated with the hundreds of Fosamax jury trials Merck that could be involved with as a defendant starting in late 2014 or early 2015.______________________________________________________________________________