By Farron Cousins

October 31st, 2012  3:00pm

In November 2011, John Keenan, United States District Judge for the Southern District of New York, presiding judge of Multi-District Litigation No. 1789, In re Fosamax Products Liability Litigation, ordered Defendant Merck & Co. and the Plaintiffs Steering Committee to commence settlement talks.  Judge Keenan appointed Fordham Law School Dean Emeritus John Feerick to serve as the Special Settlement Master pursuant to Federal Rule of Civil Procedure 53(a).  Judge Keenan directed the Special Settlement Master to engage in efforts to resolve the 1,500+ cases involving Fosamax-induced osteonecrosis of the jaw (death of jaw bone).

After nearly a year of settlement talks, the parties recently announced to the Court that settlement negotiations impassed with no settlement achieved.

On October 16, 2012, Defendant Merck moved the Court to issue a so-called “Lone Pine” order which would require every plaintiff in MDL No. 1789 to submit an expert report before any discovery proceeded in that particular plaintiff’s case.  “Lone Pine” orders are rarely used by MDLs.  In recent history, the only time pharmaceutical MDLs have used “Lone Pine” orders is after the parties jointly announced a mass settlement.  The “Lone Pine” procedure is then directed to cleaning up the cases that either do not qualify for settlement or which have opted out of the settlement procedure.

On behalf of the Plaintiffs Steering Committee, Lead Counsel Timothy M. O’Brien of Levin, Papantonio in Pensacola, Florida, filed an opposition to Defendant Merck’s motion on October 29, 2012.  In the opposition brief, O’Brien argued that, because no mass settlement has occurred in the Fosamax MDL, and because “Lone Pine” orders are not expressly authorized by the Federal Rules of Civil Procedure: “This Court Should Reject Defendant’s Request  for the Court to Wield the Aberrant ‘Lone Pine’ Cudgel in an Even More Aberrant Fashion.”

At the same time, O’Brien asked the Court to announce and end date to the MDL and direct the parties to resume settlement negotiations with the Special Settlement Master for sixty days before that end date.  When asked about the opposition brief, and his request that the Court announce an end date to the MDL, O’Brien replied: “We’ve done everything the parties set out to do in this MDL, and more.  Scores of women have died waiting for this MDL to end.  It’s time for these cases to either settle or go home.”

A hearing on Defendant Merck’s “Lone Pine” motion is set for November 13, in New York City.

Farron Cousins is the executive editor of The Trial Lawyer Magazine, a contributing writer at, and the producer of Ring of Fire Radio.

More information on Fosamax MDL.