Tuesday, August 19, 2014

UPDATE: The New Jersey Law Journal Is Running My Scoop

The MSM outlet -- New Jersey Law Journal -- adds a nice new level of detail, going into additional background on the motion, here. Do go read it all -- but below is a bit.

The article is not as clear as it could be in distinguishing the femur cases from the ONJ (and all other) ones. This motion applies only to the femur cases.

. . . .The court should order all remaining plaintiffs to show cause why their claims should not be dismissed on federal preemption grounds, in light of the court’s ruling in Glynn’s case, Merck said in its brief. Alternately, any remaining cases in which plaintiffs used the drug after the 2011 label revision should show cause why their claims should not be dismissed for reasons stated by the court in Gaynor’s case, Merck said.

Although Gaynor’s case was decided based on laws of the state of New York, where Gaynor resides, the ruling “is based on fundamental principles that all states recognize—most notably, that a plaintiff cannot prevail for failure to warn if the warning label at issue warned of the very injury she allegedly suffered,” Merck said in its brief.

Following ruling in Glynn’s case, Pisano granted Merck’s motion to dismiss roughly 650 cases involving alleged injuries occurring before Sept. 14, 2010 on preemption grounds. Merck said in its Aug. 15 brief that its prior motion was limited to that group of cases on the assumption that plaintiffs who claimed later injuries would base their claims on the contention that the revised warning label issued in January 2011 was inadequate. However, earlier this year, plaintiffs lawyers in the case indicated that “no plaintiff alleges that the January 2011 label was a proximate cause of his or her injury,” Merck said. . . .

We will -- of course -- watch this for the readership. There were about 1,280 femur cases still pending as of the end of Q2 2014, according to Merck's latest SEC filed Form 10-Q.

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