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In re Fosamax Products Liability Litigation

December 10, 2008

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION,
KAREN DENISE GREENE
v.
MERCK & CO., INC.,



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MDL No. 1789

This Document Relates to

Amended Memorandum Opinion & Order

Plaintiff Karen Denise Greene ("Greene") moves to voluntarily dismiss her claims pursuant to Federal Rule of Civil Procedure 41(a)(2). The motion is granted for the reasons that follow.*fn1

Background

Greene commenced this action in June 2006. Following its transfer to this multidistrict litigation ("MDL"), the case and twenty-four others proceeded through expedited discovery and were eligible to become one of three early "bellwether" trials.

On January 24, 2007, Greene submitted a sworn plaintiff profile form ("PPF"), as required of all plaintiffs in this MDL. (See Def.'s Mem. of Law in Opp'n to Pl.'s Motion to Dismiss, Ex. 2 ("Greene PPF")). Greene claimed that she developed osteonecrosis of the jaw ("ONJ") in May 2004, about two months after she started taking Fosamax. She also claimed that Dr. Edyee Sturgill diagnosed her with the condition in February 2006 and that she ceased taking Fosamax in the same month. (Id. at I.D(1)(2); VIII.A-B.)

On February 1, 2008, Merck deposed Greene. She testified to receiving the diagnosis of ONJ from Dr. Sturgill. (Def.'s Mem. in Opp'n, Ex. 3 ("Greene Dep. Tr.") at 80.)

On May 12, 2008, Merck deposed Dr. Samuel J. McKenna, the oral surgeon who treated Greene from May 2004 until July 2004, the time when her alleged ONJ first presented. (Def.'s Mem. in Opp'n, Ex. 4; Pl.'s Mem. of Law in Supp. of Motion to Dismiss, Ex. 1 ("McKenna Dep. Tr.") at 33). Dr. McKenna testified that he did not diagnose Greene with ONJ and cannot say with absolute certainty that she had the condition, although she did have delayed healing and perhaps very minimal exposed jaw bone following a tooth extraction. (Id. at 35-36.) He believes that the chances that she had developed ONJ after only two months of using Fosamax were extremely low. (Id. at 24.) At the conclusion of Dr. McKenna's deposition, plaintiff's counsel claims to have told Merck's counsel that he would discuss with Greene whether she should dismiss her case.

On August 8, 2008, plaintiff sent Merck a proposed stipulation to dismiss the case without prejudice. (Pl.'s Mem., Ex. 2.) Merck did not respond to the offer.

In mid-October, Merck notified the Court that it was selecting Greene's case as its choice for an early trial case. In a letter dated October 21, 2008, plaintiff reminded Merck of her offer to dismiss the case. (Pl.'s Mem., Ex. 3.) On October 24, 2008, Merck replied and refused to agree to a dismissal. (Pl.'s Mem., Ex. 4.)

That same day, the Court issued Case Management Order ("CMO") No. 15, which published the fact that Greene's case and two others had been selected for early trial. The order stated:

The parties shall promptly evaluate the above [early trial] cases . . . in good faith. Should Plaintiffs decide to voluntarily dismiss any of these cases selected for trial, they shall do so in a prompt manner so that a replacement case can be selected without disrupting the trial schedule.

(CMO No. 15 (Expert Discovery, Motions, and Early Trial Schedule), ยง 3.) Greene's trial is scheduled to ...


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