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Class Action Defense Cases-In re Fosamax: Over Defense Objection Judicial Panel On Multidistrict Litigation (MDL) Grants Motion To Centralize Class Action Litigation In The Southern District of New York

Judicial Panel Rejects Defense Opposition to Motion for Pretrial Coordination Pursuant to 28 U.S.C. § 1407 and Grants Motion for Centralization of Class Action Lawsuits in the Southern District of New York

After 19 products liability lawsuits – many of them class action proceedings – were filed against various pharmaceutical companies arising out of the use of Fosamax, a prescription drug manufactured by Merck and used in the treatment of osteoporosis, several plaintiffs’ lawyers (apparently supported by plaintiffs in all pending actions) moved the Judicial Panel on Multidistrict Litigation (MDL) pursuant to 28 U.S.C. § 1407, to centralize the lawsuits for pretrial purposes in either the Southern District of New York or the Middle District of Tennessee. In re Fosamax Products Liab. Litig., 444 F.Supp.2d 1347, 1348 (Jud. Pan.Mult.Lit. 2006). Defense attorneys opposed the motion. Merck’s defense team argued that the lawsuits were pending “in a limited number of federal districts, which are capable of managing the litigation without multidistrict proceedings” and that “voluntary alternative coordinating efforts are preferable to Section 1407 transfer.” Id., at 1349. The Judicial Panel rejected these arguments, as it routinely has in the past, explaining that centralization “will offer the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to consider all parties’ legitimate discovery needs, in addition to ensuring that common parties and witnesses are not subjected to discovery demands that duplicate activity that will occur or has already occurred in other actions.” Id.

With respect to the merits of the motion, the Judicial Panel found that the litigation presented “complex common factual questions concerning, among other things, 1) the development, testing, manufacturing and marketing of Fosamax, and 2) Merck’s knowledge concerning the drug’s alleged adverse effects, in particular, osteonecrosis of the jaw.” In re Fosamax, at 1349. However, the Panel also held that “claims involving prescription drugs other than Fosamax do not share sufficient questions of fact with claims relating to Fosamax to warrant inclusion of the former claims in MDL-1789 proceedings.” Id. The Judicial Panel concluded that the Southern District of New York would be the appropriate transferee court, id., at 1349-50, but excluded therefrom prescription drugs (such as Actonel) other than Fosamax.

NOTE: Based on its conclusion that Actonel should be treated separately from Fosamax, the Judicial Panel ordered that “this docket, originally named MDL-1789–In re Fosamax and Actonel Products Liability Litigation, is renamed as follows: MDL-1789–In re Fosamax Products Liability Litigation.” Id., at 1350.

Download PDF file of In re Fosamax Products Liability Litigation Transfer Order