Merck's Fosamax® ONJ MDL Likely To Be Settled? Could Be.

With Boles III (damages, to a jury) set to go to trial in early March of 2012, this is welcome news -- on the federal Fosamax^® osteonecrosis of the jaw multi-district litigation.

More widely, I must note that the emerging meta-narrative here is that Merck is no longer a "litigate at all costs" company. By my count, it has announced, or is working on at least six very high-profile settlements of past legal claims and investigations -- in just the last three months. [Seven, in the multi-billion dollar category, if one counts the J&J arbitration settlement of this past spring.]

That, a sea-change, makes. . .

And a wise one, in my estimation. CEO Frazier sees things that GC Frazier (perhaps) did not. Reputation still matters -- and when one is the second-largest pharmaceutical company in the world by revenue (at least for one more month, anyway!), seeming an endlessly-provoked bully does one very little marginal good (except, of course, in the most extraordinary of cases).

Here's to hoping that Whitehouse Station will put Fosamax in its rear view mirror, and soon. The sales have eroded to the point that it shouldn't be supporting such a deep trough of litigation reserves. From the overnight order, in Manhattan, then:

. . . .During the past year, the Court has discussed with the parties to this multidistrict litigation the possibility of appointing a special master to conduct settlement discussions of the over 900 cases in this docket. To that end, the Court proposed the names of five distinguished lawyers willing to serve as the Special Settlement Master and supplied counsel to the parties with their resumes and fee information. The parties were given several weeks to confer and have now reached an agreement about the appointment of the Special Settlement Master.

With the consent of the Plaintiffs' Steering Committee and defendant Merck Sharp & Dohme Corp., the Court hereby appoints John D. Feerick, Esq., Dean Emeritus of the Fordham University School of Law, as the Special Settlement Master. Mr. Feerick will file the affidavit required under Rule 53 (b) (3) of the Federal Rules of Civil Procedure by December 7, 2011. As Special Settlement Master, Mr. Feerick is authorized to conduct any proceedings permissible under Rule 53 that are necessary to resolve all or any part of this multidistrict litigation in a fair and efficient manner. Pursuant to Rule 53(g)(2)(A), the parties shall pay in equal shares the fee for Mr. Feerick's services. Mr. Feerick will schedule meetings with counsel in the near future, after he has familiarized himself with this litigation.

SO ORDERED.

/s/ John F. Keenan,
United States District Judge

Dated: New York, New York November 22, 2011. . . .

It is still by no means a certainty that a settlement will ensue, but it does suggest a shift from the prior "try every case; concede nothing; [almost] never settle" posture Merck had been known for, when now-CEO Frazier had been the General Counsel. Refreshingly good business sense.

We will keep you posted.