Is there a Fosamax Class Action Lawsuit Filed?

On October 24, 2008, presiding Fosamax Federal  Judge John F. Keenan entered an order establishing a CMO 15. Through this CMO, the Court established the expert disclosure and discovery deadlines and, more importantly, established which three clients' cases will be tried in the MDL and in what order. The first case to be tried will be tried in August 2009 and is the case selected by the Plaintiffs Steering Committee. The second case to be tried will be tried in October 2009 and is the case selected at random by the Court. The third case to be tried will be tried in January 2010 and is the case selected by Merck.

The United States District Court for the Southern District of New York, the presiding Court in the In re Fosamax Products Liability Litig. MDL No. 1798 recently denied Merck's attempt to set for early consideration motions for summary judgment relating to the minimum drug exposure period for Fosamax-induced osteonecrosis of the jaw ("ONJ"). Merck had attempted to file and set the summary judgment motions for hearing prior to the conclusion of generic fact discovery and expert witness discovery .

Class Action Lawsuits Explained

Class action lawsuits may be brought in federal court if the claim arises under federal law, or if the claim falls under 28 USCA § 1332 (d). Under § 1332 (d) (2) the federal district courts have original jurisdiction over any civil action where the amount in controversy exceeds $5,000,000 and either 1. any member of a class of plaintiffs is a citizen of a State different from any defendant; 2. any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or 3. any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state. Nationwide plaintiff classes are possible, but such suits must have a commonality of issues across state lines. This may be difficult if the civil law in the various states have significant differences. Large class actions brought in federal court frequently are consolidated for pre-trial purposes through the device of multidistrict litigation (MDL). It is also possible to bring class action lawsuits under state law, and in some cases the court may extend its jurisdiction to all the members of the class, including out of state (or even internationally) as the key element is the jurisdiction that the court has over the defendant.

Typically, federal courts are thought to be more favorable for defendants, and state courts more favorable for plaintiffs. Many class action cases are filed initially in state court. The defendant will frequently try to remove the case to federal court. The Class Action Fairness Act of 2005 increases defendants' ability to remove state cases to federal court by giving federal courts original jurisdiction for all class actions with damages exceeding $5,000,000, exclusive of interest and costs. It should be noted, however, that the Class Action Fairness Act contains carve-outs for, 'inter alia', shareholder class action lawsuits covered by the Private Securities Litigation Reform Act of 1995 and those concerning internal corporate governance issues (the latter typically being brought as shareholder derivative actions in the state courts of Delaware, the state of incorporation of most large corporations).^[

The procedure for filing a class action is to file suit with one or several named plaintiffs on behalf of a proposed class. The proposed class must consist of a group of individuals or business entities that have suffered a common injury or injuries. Typically these cases result from an action on the part of a business or a particular product defect or policy that applied to all proposed class members in a uniform manner. After the complaint is filed, the plaintiff must file a motion to have the class certified. In some cases class certification may require additional discovery in order to determine if the proposed class meets the standard for class certification.

Upon the motion to certify the class, the defendants may object to whether the issues are appropriately handled as a class action, to whether the named plaintiffs are sufficiently representative of the class, and to their relationship with the law firm or firms handling the case. The court will also examine the ability of the firm to prosecute the claim for the plaintiffs, and their resources for dealing with class actions.

Due process requires in most cases that notice describing the class action be sent, published, or broadcast to class members. As part of this notice procedure, there may have to be several notices, first a notice giving class members the opportunity to opt out of the class, i.e. if individuals wish to proceed with their own litigation they are entitled to do so, only to the extent that they give timely notice to the class counsel or the court that they are opting out. Second, if there is a settlement proposal, the court will usually direct the class counsel to send a settlement notice to all the members of the certified class, informing them of the details of the proposed settlement.

In federal civil procedure law, which has generally been accepted by most states (through adoption of state civil procedure rules paralleling the federal rules), the class action must have certain definite characteristics:

1. The class must be so large as to make individual suits impractical,
2. There must be legal or factual claims in common
3. The claims or defenses must be typical of the plaintiffs or defendants,
4. The representative parties must adequately protect the interests of the class. In many cases, the party seeking certification must also show
5. That common issues between the class and the defendants will predominate the proceedings, as opposed to individual fact-specific conflicts between class members and the defendants and
6. That the class action, instead of individual litigation, is a superior vehicle for resolution of the disputes at hand.