Lawyers in a bellwether case over Merck & Co.’s osteoporosis drug Fosamax drew a New Jersey appellate panel’s rebuke Wednesday for having waited four months to notify the court that the case had settled.
It was not until April 9—two days before the Appellate Division planned to release its opinion after review of a record with 5,300 pages of documents—that the lawyers let the court know of the settlement reached in January.
“For attorneys in a civil case in an appeal with a voluminous record to neglect to notify us of a settlement for four months is unconscionable,” the panel said, adding that it had “seriously considered” imposing sanctions against counsel for both sides in Sessner v. Merck Sharp & Dohme Corp.
Judges Clarkson Fisher Jr., Marianne Espinosa and Ellen Koblitz even considered filing their opinion on the merits of the case, which they said was within their discretion.
Instead, they issued a published opinion that reminds attorneys of the importance of notifying the court when settlement seems imminent.
The appeal was from a no-cause verdict in an Atlantic County suit by Jo Ann Sessner, a Fosamax user who developed necrosis of the jawbone after having four teeth extracted.
When Sessner and Merck reached the settlement in January, a letter was drafted to notify the Appellate Division, but it was never sent.
On April 10, when the court’s website announced that the decision would be issued the next day, lawyers for both sides hurriedly urged the court to withhold its ruling, lest the decision get in the way of executing the settlement.
Merck’s lawyers said the court should not post it to avoid “creating additional litigation,” while plaintiff counsel said there was a “theoretical chance that settlement may not be consummated if the panel’s opinion is released.”
The appeals panel was plainly nonplussed by the lawyers’ actions. Koblitz noted that counsel for Sessner affirmatively represented in their case information statement that the prospect of settlement was unlikely, and that a settlement conference would not aid in disposition of the case. If circumstances of the case change, R. 2:5-1(f)(2) requires counsel for the appellant to file an amended case information statement, she said.
Koblitz cited Citizens State Bank v. Schneider, 189 N.J. Super 518 (App. Div. 1984), which said, “Dilatoriness in promptly notifying the court that settlement has occurred reflects not only a lack of consideration but a lack of concern for the wasted time and expense thereby incurred.”
She also cited appellate case load statistics to underscore the imposition that was placed on the court. About 6,200 appeals and 8,400 motions were filed in the last court term, heard by 32 judges. Some appellants are incarcerated and a favorable result could result in their freedom, and in other appeals the welfare of children is at stake, she noted.
Merck was represented on the appeal by Paul Strain of Venable in Baltimore, Eileen Oakes Muskett of Fox Rothschild in Atlantic City, and Wilfred Coronato of Hughes, Hubbard & Reed in Jersey City. Muskett declined to comment and Coronato did not return a call.
Strain deferred to Merck spokeswoman Lainie Keller, who said: “Merck has the utmost respect for the New Jersey appellate court and the hard work that it performs on behalf of all New Jersey citizens. The company believed that it had notified the court by letter on January 9, 2014, of the pending settlement and had requested that the matter be stayed, and sincerely regrets that this communication was not received.”
Sessner’s lawyers are Michael Rosenberg of Seeger Weiss in Newark and William Cash of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor in Pensacola, Fla. Rosenberg declined to comment and Cash did not return a call.
More than 1,200 suits were filed in state and federal courts claiming Fosamax caused osteonecrosis of the jaw. Seven have been tried nationwide, with five ending in defense verdicts. Merck agreed last December to settle the remaining cases for $27 million.
Another 3,700 suits are pending in state and federal courts alleging Fosamax caused femoral fractures or other bone injuries. In New Jersey, the jaw osteonecrosis and bone fracture cases were centralized in Atlantic County before Superior Court Judge Carol Higbee. Sessner’s case was the second to be tried.
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