Federal Court Fosamax MDL Reassigned From Judge Pisano To Judge Wolfson While We Wait For Appellate Court To Rule On Appeals From Glynn And Gaynor Case Rulings
UPDATE: On March 22, 2017 the Third Circuit Court of Appeals reversed the dismissal by U.S. District Court Joel Pisano of all the pending federal court Fosamax - femur fracture cases nationwide on federal preemption grounds. The Third Circuit significantly held that the ultimate question of whether the FDA would have rejected a Fosamax label change by Merck for the increased risk of femur fractures is a question of fact for the jury, rather than for the court, to decide.
UPDATE: "Remaining Fosamax Cases Dismissed But Not Dead" (New Jersey Law Journal, 6/23/15)
U.S. District Judge Freda Wolfson of the District of New Jersey has dismissed the last remaining 570 cases in the Fosamax - femur fracture federal court MDL, but the cases could be reinstated if plaintiffs win an appeal currently pending before the U.S. Court of Appeals for the Third Circuit.
Since we last reported on the Fosamax - femur fracture litigation there has been a trial verdict in a California state court case and in early April 2015 the jury sided with the defendant drug company Merck, i.e., defense verdict. This lawsuit was Galper v. Merck, and the trial stated in February 2015.
Unless things have changed recently, the next California state court Fosamax lawsuit trial is scheduled to start in July 2015, with one to follow in October 2015.
Of course, the results of those California femur fracture trials are much anticipated.
Meanwhile, in the federal court Fosamax MDL pending in the District of New Jersey, there has been a development as regards the presiding judge for that litigation. On March 10, 2015 Judge Freda Wolfson was appointed to replace Judge Joel Pisano.
Other than that change of presiding judge, the federal court Fosamax lawsuits are in an apparent "holding pattern" while the parties wait for the appellate court to issue rulings on two appeals regarding the Fosamax label, or package insert, information about the femur fracture side effect.
For detailed information concerning this situation we look to Merck's Form 10-Q SEC filing for the quarterly period ended March 31, 2015 (at pages 20-21 of the PDF):
... on March 26, 2014, [relying upon his earlier ruling in the Glynn v. Merck case] Judge Pisano issued an opinion finding that all claims of the approximately 650 plaintiffs who allegedly suffered injuries prior to September 14, 2010, were preempted and ordered that those cases be dismissed. The majority of those plaintiffs are appealing that ruling to the U.S. Court of Appeals for the Third Circuit. Furthermore, on June 17, 2014, Judge Pisano granted Merck summary judgment in the Gaynor v. Merck case and found that Merck’s updates in January 2011 to the Fosamax label regarding atypical femur fractures were adequate as a matter of law and that Merck adequately communicated those changes. The plaintiffs in Gaynor have appealed Judge Pisano’s decision to the Third Circuit....
We will be watching for these Fosamax label appeals rulings, which may not be issued until the first part of 2016, unfortunately.
Returning to the Merck SEC filing from April 2015, we get these Fosamax femur fracture lawsuits numbers as of March 31, 2015:
- 515 cases have been filed in California state court;
- 1,040 were pending in the Fosamax femur fracture MDL in federal court; and,
- 3,050 cases have been filed in New Jersey state court.
As for the current status of those New Jersey Fosamax lawsuits, which are consolidated in Middlesex County, it appears that Judge Jessica Mayer is content on waiting for the federal appellate court rulings to be issued. Perhaps she will surprise us, however, and finally have a long-overdue trial for the Unanski v. Merck case, for example.