united states district court jun 1 9 2015 il district of ... · case 3:08-cv-00008-flw-lhg document...

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

RECEIVED

JUN 1 9 2015 AT 8:30 M

WILLIAM T. WALSH CLERK

IN RE: FOSAMAX (ALENDRONATE MDL No. 2243 , SODIUM): PRODUCTS LIABILITY Master Docket No. 08-08 (FL W)(LHG)

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LITIGATION

THIS DOCUMENT RELATES TO: ALL CASES LISTED IN APPENDIX I

ORDER CONDITIONALLY DISMISSING ALL PENDING CLAIMS

This MDL proceeding consists of product-liability suits concerning

11 Fosamax, a prescription bisphosphonate medicine indicated for, inter alia, the

treatment and prevention of osteoporosis. Plaintiffs in these cases assert state law

claims against Merck Sharp & Dohme Corp. ("Merck") -the manufacturer of

F osamax - alleging that F osamax caused Plaintiffs to suffer atypical femur

fractures ("AFFs").

On March 26, 2014, the Court entered judgment as a matter of law

dismissing the claims of hundreds of Plaintiffs who allegedly suffered femur

: • fractures prior to September 14, 2010 on preemption grounds. See In re Fosamax

I (Alendronate Sodium) Prods. Liab. Litig., MDL 2243, 2014 WL 1266994 (D.N.J.

, Mar. 26, 2014) (the "Preemption Ruling"). The Preemption Ruling is now on I

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appeal to the Third Circuit.

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Case 3:08-cv-00008-FLW-LHG Document 4046 Filed 06/19/15 of 18 PageID: 69811

On June 17, 2014, the Court granted summary judgment in favor of Merck

in the Gaynor case and found that the 20 11 F osamax warning regarding atypical

femur fractures is adequate as a matter of law because it "is accurate, clear,

consistent and as a whole conveys a meaning that is unmistakable as it relates to

AFFs." Gaynor v. Merck Sharp & Dohme Corp., Nos. 12-1492, 08-08, 2014 WL

2738224, at* 11 (D.N.J. June 17, 2014). The Gaynor Plaintiff has appealed this I

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1 ruling to the Third Circuit.

Following the dismissal of Gaynor, the PSC advised the Court by letter and

during telephonic status conferences that to the best of their knowledge no Plaintiff

is alleging that the 2011 F osamax label was a proximate cause of his or her injuries

and that the adequacy (or inadequacy) of that label has not been placed at issue by

any Plaintiff. On November 5, 2014, the Court ordered those Plaintiffs whose

cases had not previously been dismissed by the Preemption Ruling and who claim

that the warning about AFFs in the January 2011 Fosamax label was inadequate

and a proximate cause of their alleged injuries to show cause why their claims

should not be dismissed in light of the prior rulings by the Court (the "November

5, 2014 Order")(Dkt. 3927). The November 5, 2014 Order further provided that if

any Plaintiff did not make such a claim, then they would be forever barred,

precluded, and estopped from claiming that the January 2011 Fosamax label was

inadequate and a proximate cause of their alleged injury. !d. at 5.

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No Plaintiff submitted a response to the November 5, 2014 Order. The lack

:of a response by any Plaintiff is consistent with the PSC's prior representations and

the fact that no Plaintiff is alleging that the 20 11 F osamax label was a proximate

cause of his or her injuries or placing the adequacy (or inadequacy) of that label at

issue in his or her case. Consequently, the Court has determined, after consultation

II with the PSC, that the claims of all remaining Plaintiffs in this litigation are based

11 on the alleged inadequacy of the pre-2011 Fosamax label. Because the adequacy

of the pre-2011 Fosamax label is the issue currently being decided by the Third

Circuit, the decision on appeal will determine whether the claims of the remaining

Plaintiffs in this litigation (identified in Appendix I hereto) remain viable or not.

Consequently, IT IS on this f q ~ay of 'Jtw\c., , 2015,

ORDERED that the claims of all Plaintiffs listed on Appendix I against

Merck are hereby conditionally dismissed without prejudice pending the decision

by the Third Circuit on the appeal of the March 26, 2014 Preemption Ruling.

It is further ORDERED that if the Third Circuit denies the appeal and

affirms the Preemption Ruling in its entirety,. and any further motion for

reconsideration and/or appeal is unsuccessful and the decision upholding the

Preemption Ruling becomes final, then the Court will enter an order dismissing the

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claims of the Plaintiffs listed on Appendix I with prejudice.

It is further ORDERED that if the Third Circuit grants the appeal and

reverses the Preemption Ruling in whole or in part, and any further motion for

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i 1 reconsideration and/or appeal is unsuccessful and the decision reversing the

, , Preemption Ruling becomes final, then the Court will enter an order reinstating the

. claims of the Plaintiffs listed on Appendix I consistent with the appellate court's

decision.

H/iefa~ United States District Judge

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APPENDIX I

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APPENDIX I

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APPENDIX I

Duncan, I Mary Duncan, Mary

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13-cv-1891 6/27/2008; 5/8/2010


APPENDIX I

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APPENDIX I

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APPENDIX I

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APPENDIX I

Karones, Clara Karones, Clara 12-cv-7418 6/20/2000; 12/3/2005; 12/1/2010

Kazemi, . arideh Kazemi, Farideh 12-cv-1719 4/17/2011; 8/20/2011

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APPENDIX I

McNinch, Robert (PR-Patricia McNinch

Estate)

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APPENDIX I

Mish, D : na Mish, Dianna.

Mitsutor)1i, Jean Mitsutomi, Jean

Modrow,, Shirley Modrow, Shirley

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14-cv-1222

12-cv-5331

12-cv-6293

11/27 /2011;

9/16/2012

10/17 /2004;

9/1/2009

5/22/2011; 6/21/2012

10/5/2011;

11/8/2011


APPENDIX I

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APPENDIX I

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APPENDIX I

Simic, Alln Simic, Ann 13-cv-2211

Christian, Marilyn 14-cv-7542

Steves, Susan 12-cv-1275

Stewart, leen Stewart, Kathleen 12-cv-6296

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APPENDIX I

13-cv-33

12-cv-3790

Whiteside, Elizabeth Whiteside, Elizabeth 14-cv-4609 9/19/2009; 12/2011

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APPENDIX I

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