As long as we are resetting the litigation score cards generally, perhaps the biggest news overall is that -- potentially -- three Fosamax® femur fracture cases will be underway at once in the New Jersey state courts, before the very-able Judge Carol Higbee -- in Atlantic City, beginning on St. Pat's 2014. The case names are Unanski, Love and Caravello. All "v. Merck".
Overall there are about 2,700 such cases pending in New Jersey. Immediately below is my attempt to simplify some of the SEC Form 10-K financial footnote disclosure -- (Footnote 10, at page 104, et seq.) in Merck's most recent annual report. And all of this is in response to a question from a kind reader on the back-up blog site:
. . . .My understanding is that in the federal courts, many Fosamax "all other injury" cases — (some of which may include a femur claim, along with other so-called atypical claims) that are already underway, in the federal district court in Manhattan, will continue as an MDL, under the watchful eye of the very able Judge John F. Keenan.
In general (more specifics below), the state court Foamax injury cases, before Judge Carol Higbee, if memory serves, in the Atlantic County Superior Court of New Jersey, in Atlantic City, all continue — but if a claimant alleges only a femur fracture or other femur injury, those cases will be — or have been — transferred (under a removal order, actually) to Judge Joel Pisano in the federal District Courthouse in Newark, New Jersey — as part of an MDL there. Next trial in those cases is slated for October 1, 2014 — but no named case had as yet been selected for that reserved trial date, as of last week.
As of December 31, 2013, approximately 2,655 cases alleging Femur fractures have been filed in New Jersey state court and are pending before Judge Higbee in Atlantic County Superior Court. . . . [A first bellwether] trial, Unanski v. Merck, was set to be tried beginning in November 2013, but was continued and is now set for trial, potentially along with one or two other cases (Love v. Merck and Caravello v. Merck), beginning on March 17, 2014.
Also as of December 31, 2013, approximately 510 cases alleging Femur Fractures have been filed in California state court. A petition was filed seeking to coordinate all Femur Fracture cases filed in California state court before a single judge in Orange County, California. The petition was granted and Judge Steven Perk is now presiding over the coordinated proceedings. In November 2013, the court ordered that fact discovery commence. The parties are expected to select the first round of cases to be included in a bellwether discovery pool in May 2014. . . .
So now you know.
3 comments:
Did the trials begin? I haven't read anywhere that they got underway.
Will Judge Piasno's ruling about preemption also affect the trials in Higbee's court? What has happened with the Unanski trial?
State courts are not required to accept the federal courts analysis on state law matters, but preemption is a federal notion -- federal law. So it is highly likely state Judge Higbee will follow federal Judge Pisano's preemption analysis.
Now we wait for the first quarter SEC Form 10-Q -- for a case by case, and state vs. federal update -- on ONJ and all other Fosamax injury claims.
Namaste
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