Federal Fosamax® Femur MDL Update: The Gaynors Take Their Bellwether Trial, On Appeal To The Third Circuit, On Summary Dismissal By Judge Pisano

About ten days ago, we noted that the very competent US District Court Judge Joel Pisano (sitting in Newark) had dismissed the Gaynors' suit against Merck -- saying that there were essentially no claims left (even if proved) -- that would entitle the Gaynors to a judgment against Whitehouse Station.

So the jury never got empaneled -- to hear, or deliberate -- on their case. Now they appeal that ruling. Meanwhile Judge Pisano continues to look for other bellwether cases to help line out the likely settlement posture for the parties -- and get a handle on whether the damages (if any are found to be attributable to Merck's conduct in selling Fosamax^®) will warrant any form of a global offer from Merck. We are keeping tabs:

. . . .PLEASE TAKE NOTICE that Barbara Gaynor and Robert Gaynor, plaintiffs in Barbara Gaynor and Robert Gaynor v. Merck Sharp & Dohme Corp., appeals to the United States Court of Appeals for the Third Circuit from each and every part of the Opinion and Order entered on June 17, 2014 [MDL Dkt. Nos. 3855, 3856], and from all prior and subsequent opinions, orders, and rulings adverse to Plaintiff, including without limitation the Letter Order entered on August 13, 2013 [MDL Dkt. No. 2887] and the Order to Show Cause entered on August 15, 2013 [MDL Dkt. No. 2895].

Dated: July 10, 2014. . . .

We will keep you up to the minute -- as this appeal progresses, but I see only a small chance that Judge Pisano is overruled here.