In re: Fosamax Products Liability Litigation


New York Law Journal


Judge John Keenan

Multi-district litigation (MDL) involved claims that persons ingesting Fosamax suffered maladies including sore and swollen gums, lost and broken teeth, and osteonecrosis of the jaw (ONJ). Merck twice previously sought an order under Lore v. Lone Pine Corp. with respect to plaintiffs who did not allege ONJ or osteomyelitis. Its Sept. 20 third request sought a Lone Pine order to require all plaintiffs to provide facts and materials supporting their claims through expert reports. Considering the five factors in In re Digitek Prod. Liability Litig. the court found entry of a Lone Pine order—limited to plaintiffs not alleging ONJ or osteomyelitis—appropriate. Such an order would only minimally burden plaintiffs and foster efficiency. Limiting the Lone Pine order to only non-ONJ and non-osteomyelitis plaintiffs would target potentially spurious claims without imposing undue obligations on other plaintiffs. Further, if settlement is reached, elimination of spurious claims would ensure that only plaintiffs with meritorious claims are compensated. If the MDL concludes without settlement, and cases are transferred back to their home districts, Lone Pine ensures that the home districts receive only viable cases.

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