Given how blunt the parties have been in their latest exchange of letters, before the trial judge, and how apparently fundamental the misunderstandings between lead plaintiffs' counsel and the very able trial judge have become, it may well be that a new judge will ultimately hear and decide the future MDL case, should Merck not elect to settle this whole set of Fosamax® ONJ matters, by early next year. In fact, Merck's counsel speculated about/suggested just such an outcome, in a letter filed today with the court, in Secrest post trial matters.
Just look at how tense the minute order, in reply to the plaintiffs' lead lawyer is -- I'll note that any trial judge would have every right to be offended, if anyone suggested he was "handing out bellwether favors" in this way, purportedly as a quid pro quo, for the ongoing delay in the Boles III damages trial. Ouch -- see below:
. . . .ORDER: The assertion in Mr. O'Brien's letter dated October 5, 2011, that the Court indicated the Plaintiffs' Steering Committee could "pick" the "next case for trial" is absolutely inaccurate. Mr. O'Brien made no such request, and there was no discussion between the Plaintiffs' Steering Committee, Merck Sharp & Dohme Corp., and the Court concerning the selection of a new case for trial to replace Raber v. Merck & Co., Inc., 06 Civ. 6295 (JFK). Arcemont v. Merck & Co., Inc., 07 Civ. 2389 (JFK) will not be the next case tried. (Signed by Judge John F. Keenan on 10/11/2011). . . .
Meanwhile, the November 7, 2011 trial date for Raber has evaporated, and the scheduling/selection of yet another substitute case is now the subject of motion practice. This is likely to get snarkier, before it settles down.
It seems that at least some of the tension flows from the trial judge's not agreeing to grant a remand (to a federal court closer to home) in two would-be bellwether cases, where constant medical care is required, for the plaintiffs' spouses. Both requests were partially styled by lead plaintiffs' counsel as Americans With Disabilities Act requests for accomodation, and were rejected by Judge Keenan, on procedural grounds. Interesting. Do stay tuned.
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