MANHATTAN (CN) – Overseen by a federal judge, a court clerk judge on Thursday spun a wheel to choose which plaintiff gets first crack against Merck for jawbone injuries she blames on the drug company’s osteoporosis drug Fosamax.
An attorney for the “winner” Rosemary Spano told Courthouse News, “We have no issue with the way the court chose the case.”
U.S. District John F. Keenan described his selection process in a 4-page order.
“At noon on Thursday, June 30, 2011, in Courtroom 18-C, the Court will direct Deputy Clerk William Ryan to place one card for each of these five cases in the wheel used for juror selection,” the order states. “After Mr. Ryan spins the wheel, the Court or its designee will select a card. The Court will then schedule the case indicated on that card for trial. Although counsel for Merck and the PSC may attend the selection, they are not required to attend. A stenographic record of the proceedings will be kept.”
Merck faces more than 1,000 lawsuits for Fosamax, according to the Courthouse News database. The FDA approved the drug in 1995, but it has been blamed for causing osteonecrosis of the jaw. Merck put a warning label on the drug on July 15, 2005.
After a telephone conference in mid-May, Judge Keenan tapped husband-and-wife Rhonda and Steven Jellema to proceed with liability claims, in a trial set for May 7, 2012. The Jellemas said Rhonda took the drug before the warning label was added, but symptoms surfaced afterward.
The parties had a harder time selecting a bellwether case for claims from users who say they were injured after the warning label was added.
Keenan selected five to participate in random selection by the lottery wheel, and Spano’s card came up.
An attorney for Merck did not immediately respond to a voice mail request for comment.
Spano’s attorney David Dickens told Courthouse he believes his client has a strong case, and he expects the parties will enter into discovery soon.
Spano v. Merck has been set for Feb. 27, 2012.