Harth v. Merck & Co., Inc.

Filing 122

ORDER. In light of the Court's rulings on the parties' objections, the trial selection pool will consist of the following five cases: (1) Fasolino v. Merck & Co., Inc., 07 Civ. 9881 (JFK). (2) Scheinberg v. Merck & Co., Inc., 08 Civ. 4119 ( JFK). (3) Diamond v. Merck & Co., Inc., 08 Civ. 4204 (JFK). (4) Spano v. Merck & Co., Inc., 09 Civ. 6948 (JFK). (5) Dicheck v. Merck Sharp & Dohme Corp., 10 Civ. 5328 (JFK). At noon on Thursday, June 30, 2011, in Courtroom 18-C, the Court will direct Deputy Clerk William Ryan to place one card for each of these five cases in the wheel used for juror selection. After Mr. Ryan spins the wheel, the Court or its designee will select a card. The Court will then schedule the case indicated on that car d for trial. Although counsel for Merck and the PSC may attend the selection, they are not required to attend. A stenographic record of the proceedings will be kept. (Signed by Judge John F. Keenan on 6/28/11) Filed In Associated Cases: 1:06-md-01789-JFK -JCF et al.(rjm)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 29, 2011

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
UNITED STATES DISTRICT COURT
IN RE:SOUTHERN DISTRICT OF NEW YORK
:
FOSAMAX PRODUCTS LIABILITY LITIGATION
-----------------------------------------------------------x : No. 06 MD 1789 (JFK)
----------------------------------------:
In re FANNIE MAE 2008 SECURITIES
:
08 Civ. 7831 (PAC)
This document relates to all actions. : :
ORDER
LITIGATION
09 MD 2013 (PAC)
----------------------------------------X
:
:
OPINION & ORDER
JOHN F. KEENAN, United States District Judge:
-----------------------------------------------------------x
I.

Background

In its February 4, 2011 Order, the Court directed counsel
HONORABLE PAUL A. CROTTY, United States District Judge:
for Merck Sharp & Dohme Corp. ("Merck") and the Plaintiffs'
BACKGROUND1
Steering Committee (the "PSC") to confer and select two cases
The early years of this decade saw a boom in home financing injury
for trial as bellwethers that concern allegations of which was fueled, among

after other things, by low interest rates and in credit conditions. The lending instruments, such as
the Fosamax label change lax July 2005. New Court directed
subprime mortgages (high credit risk alleging Fosamax use prior to
the parties to include one caseloans) and Alt-A mortgages (low-documentation loans)
kept the boom going. Borrowers played a role too; they took Fosamax use
the July 2005 label change and another allegingon unmanageable risks on the
assumption that the July 2005 label rise and that refinancing options would
beginning after the market would continue tochange. The parties failed always be
available in the future. on the selection of cases, and during a
to reach an agreement Lending discipline was lacking in the system. Mortgage originators did
not hold these high-risk mortgage May Rather than the Court scheduled
telephone conference held on loans. 16, 2011,carry the rising risk on their books, the
originators sold & Co., into the No. 09 Civ. 4282 (JFK), securitized packages
Jellema v. Merck their loans Inc., secondary mortgage market, often asfor trial

on Mayknown as mortgage-backed securities Because Jellema isgrewcase exponentially.
7, 2012, at 10:00 a.m. (“MBSs”). MBS markets a almost
But use and injury following the demand for housing dropped abruptly
alleging both then the housing bubble burst. In 2006, the July 2005 label
and home prices directed the parties to again market, and
change, the Court began to fall. In light of the changing housingconferbanks modified their

selectlending practices and became unwillinguse before July 2005 without refinancing.
a case involving Fosamax to refinance home mortgages and injury
after July 2005.
1

Unless otherwise indicated, selection as “(¶ _)” additional case, the
In discussing the all references cited of an or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

parties failed to agree on a process for the waiver of Lexecon
1

rights. See Lexecon, Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998).

The Court then directed the parties

to submit a list of cases that satisfy the relevant criteria of
the Court's February 4, 2011 Order and for which venue is proper
in the Southern District of New York.

The Court indicated that

it would randomly select a case from this list.

On Thursday,

June 23, 2011, the parties jointly submitted a list with nine
cases.

On Monday, June 27, 2011, the parties submitted letters

to the Court objecting to the inclusion of certain cases in the
trial selection pool.
II.

Cases Excluded from the Trial Selection Pool

Both parties agree that Ross-Epstein v. Merck & Co., Inc.,
08 Civ. 9950 (JFK) is inappropriate for inclusion in this case
because the alleged injury date is prior to July 2005.

The

Court will not include Ross-Epstein in the trial selection pool.
The plaintiff in Pauling-Jones v. Merck & Co., Inc., 07
Civ. 6427 (JFK), has filed a motion for voluntary dismissal
under Rule 41(a)(2) of the Federal Rules of Civil Procedure.
Due to this pending motion, Pauling-Jones is inappropriate for
inclusion in the trial selection pool.
The PSC objects to the inclusion of Heath v. Merck & Co.,
Inc., 08 Civ. 3197 (JFK) in the trial selection pool, and argues
that Heath does not satisfy the requirements of the Court's
February 4, 2011 Order because the plaintiff was never

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prescribed Fosamax after the July 2005 label change.

The Court

agrees with the PSC, and will not include Heath in the trial
selection pool.
Merck objects to the inclusion of Newman v. Merck & Co.,
Inc., 09 Civ. 4296 (JFK), and argues that the plaintiff's
medical records suggest her injury took place prior to the July
2005 label change.

The PSC argues that the Plaintiff's Profile

Form in Newman gives an injury date in 2007.

The Court declines

to include Newman in the pool of cases eligible for selection
because of the apparent factual dispute concerning the
plaintiff's injury date.

In excluding Newman, the Court makes

no determination about the timing of the plaintiff's injury.
III.

Random Trial Selection Procedure

In light of the Court's rulings on the parties' objections,
the trial selection pool will consist of the following five
cases:
(1)
(2)
(3)
(4)
(5)

Fasolino v. Merck & Co., Inc., 07 Civ. 9881 (JFK)
Scheinberg v. Merck & Co., Inc., 08 Civ. 4119 (JFK)
Diamond v. Merck & Co., Inc., 08 Civ. 4204 (JFK)
Spano v. Merck & Co., Inc., 09 Civ. 6948 (JFK)
Dicheck v. Merck Sharp & Dohme Corp., 10 Civ. 5328
(JFK)

At noon on Thursday, June 30, 2011, in Courtroom 18-C, the
Court will direct Deputy Clerk William Ryan to place one card
for each of these five cases in the wheel used for juror
selection.

After Mr. Ryan spins the wheel, the Court or its

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,-

designee will select a card.
case indicated
Merck and the

The Court will then schedule the

on that card for trial.

Although counsel for

PSC may attend the selection,

required to attend.

they are not

A stenographic record of the proceedings

will be kept.

SO

ORDERED.

Dated:

New York,
June

2

'g,

New York
2011

JOHN

F.

KEENAN

United States District Judge

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