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Fosamax, Boniva, Actonel, Reclast and Bisphosphonate Consolidation

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

As hundreds of our current clients now, we have been litigating Fosamax, Boniva, Actonel, Reclast, Alendronate and bisphosphonate cases for years, both in federal and state court. Part of the legal strategy in maximizing results for clients depends of what court and judge is assigned. The federal litigation was recently assigned to the Honorable Joel A. Pisano in New Jersey. Procedural confusion arose as to whether Judge Pisano would handle only Fosamaxcases, or would he handle other bisphosphonate drugs if a plaintiff was on various bisphosphonate drugs over time, which is virtually every plaintiff.

As all bisphosphonates are associated with subtrochanteric, spontaneous femur fractures which tend to be oblique or transverse, a recent procedural motion was brought to resolve whether plaintiffs who used multiple drugs could keep their case as one instead of dividing up into various cases specific to one drug defendant. Thankfully, the Judicial Panel for Multidistrict Litigation ruled to keep the entire case in Judge Pisano’s court. We welcome this decision and agree heartily.

The Panel stated:

“After considering all argument of counsel, we find that the conditionally separated and remanded claims involve common questions of fact with claims in actions previously centralized in MDL No. 2243, and that transfer of Thomas-Walsh, in its entirety, to the District of New Jersey for

inclusion in the centralized proceedings will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Although most of the presently centralized actions involve questions of fact arising from allegations that the use of Fosamax or its generic

equivalent alone caused femur fractures or similar bone injuries,1 plaintiffs in at least five of the centralized actions allege that they suffered femur fractures as a result of their use of either Fosamax and Reclast or Fosamax and Boniva. Those five actions are thus quite similar to Thomas-Walsh,

wherein the plaintiff wife alleges that she suffered right and left femur fractures from her use of Fosamax, Boniva, and Reclast. Because issues concerning whether Fosamax and Boniva or Fosamax and Reclast cause femur fractures are already before the transferee court, we conclude that transfer of all claims in Thomas-Walsh is warranted. IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, this action, in its

entirety, is transferred to the District of New Jersey, and, with the consent of that court, assigned to for inclusion in the coordinated or consolidated pretrial proceedings.”

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