Sunday, September 12, 2010

Judge Orders Two New Fosamax® ONJ Bellwether Cases "Picked", By The Lawyers, By This Friday!

The very able federal District Court Judge John F. Keenan was pretty active on these cases, this past Thursday, in Manhattan. Apparently, immediately after the oral arguments (on the Boles II disciplinary matter -- no decision on that, yet), he ordered up a new list of agreed "bellwether" Fosamax® ONJ case names -- for at least two additional trials -- beyond Graves, which is to begin in earnest, on November 1, 2010 (with jury selection a few days earlier). Take a look:

. . . .The last of the three bellwether cases in this multi-district litigation, Graves v. Merck, No. 06-CV-5513 (JFK), is scheduled to go to trial on October 28, 2010. The Court believes at least two additional cases should be brought to trial before it suggests remand to the Judicial Panel on Multidistrict Litigation. Based on the parties' joint letter to the Court dated January 28, 2010, there are eighteen active trial-ready cases remaining in the initial pool selected under the procedures of Case Management Order No. 10. . . .

As such, the Court directs the Plaintiffs Steering Committee (the "PSC") and Merck each to select one case for trial from the pool of trial-ready cases set forth in Exhibit A. The parties shall also each choose two cases to serve as replacements in the event that a selected case does not proceed to trial. The parties are to agree upon a procedure under which they will contemporaneously exchange their primary selections. The exchange shall be completed no later than September 17, 2010 . . . .

The trial of the case selected by the PSC will commence on March 14, 2011. The trial of the case selected by Merck will commence on May 9, 2011. . . .

[From Exhibit A | Additional
Potential Bellwether Cases]

Bergeson | 06-9454Lopreato | 06-6295
Chadirjian | 06-11343Moore | 06-3814
DeVivo | 06-4107Purdy | 06-12969
Evans | 06-979Secrest | 06-6292
Raber | 06-4295Smith | 06-6295
Grizzell | 06-9459Startt | 06-6294
Harth | 06-361Wolfe | 06-6295
Hennrich | 06-2274Hester | 06-09450
Kincaid | 06-3815Vandercar | 06-11329

That is a rather aggressively shortened time-table -- one that might suggest Judge Keenan really wants to "get on with it" -- and get some measurable "Kentucky windage" from these now seven bellwether cases.

Stay tuned -- but this means there will be at least two additional trials, beyond the Graves trial. Could it be that Boles II is likely to settle? Will it turn out that Mr. Douglas has avoided discipline from Judge Keenan? We will, of course, keep you informed.

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