November 28, 2009
Fosamax Bellwether Case Dismissed
Last Monday Judge John Keenan of the Southern District of New York dismissed the second of three bellwether cases set for trial on Merck's osteoporosis drug, Fosamax. As David Bario of The American Lawyer reports, "the plaintiff in the second test case, a 74-year-old Mississippian named Bessie Flemings, had failed to present admissible evidence of specific causation tying her jaw problems to Fosamax." Judge Keenan found that one of Fleming's medical experts had no opinion and that the other did not qualify as an expert. Consequently, Fleming couldn't establish causation under Mississippi's Product Liability Act.
The first bellwether trial ended in a mistrial after a juror complained about physical threats from other jurors. That case is set for a new trial in the spring and the third test case is set for trial in April of 2010. Judge Keenan still has roughly 900 Fosamax cases consolidated before him through multi-district litigation.
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