UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

IN RE: Fosamax Products Liability : 

Litigation : 1:06-md-1789 (JFK)

 : Memorandum Opinion & Order

---------------------------------------------------------------x

This Document Relates to: All Actions :

:

---------------------------------------------------------------x

JOHN F. KEENAN, United States District Judge:

Following a conference on September 11, 2007, it is

hereby ordered that:

(1) The master complaint shall not be implemented. The

implementation of a master complaint at this point in the

litigation, after approximately 270 individual complaints already

have been successfully filed and answered, is not necessary and

would not be particularly productive. As the Plaintiffs Steering

Committee (“PSC”) does not strongly advocate the use of a master

complaint but only proposed it pursuant to the Court’s discussion

of the subject in late 2006, the PSC’s request to submit the

master complaint and a related implementing case management order

(“CMO”) is denied. 

(2) The PSC’s request that Merck prepare case profile forms

(“CPFs”) is denied. The Court finds no change in circumstances

warranting reconsideration of its prior conclusion in CMO No. 3

that the use of a defendant CPF is unnecessary. Merck shall 

Case 1:06-md-01789-JFK -JCF Document 158 Filed 09/12/07 Page 1 of 3
respond to individual discovery requests in good faith and in a

timely manner.

(3) The Court reserves decision on the PSC’s request for an

evidentiary hearing on the class certification motion. The Court

will determine whether an evidentiary hearing is necessary or

whether the memoranda of law, affidavits, deposition testimony

and other relevant evidence that the parties will have submitted

by September 27, 2007 in connection with the class certification

motion provide a sufficient factual basis for its disposition.

See In re Initial Public Offering Securities Litigation, 471 F.3d

24, 41-42 (2d. Cir. 2006); Marcera v. Chinlund, 565 F.2d 253, 255

(2d. Cir. 1977). See generally 32B Am. Jur. 2d Federal Courts §

1585. 

 

(4) The Court reserves decision on the sharing of discovery costs

related to document production. The parties shall

contemporaneously submit to the Court by October 6, 2007 briefs

on this issue and may address (a) the Court’s authority to shift

Merck’s production costs to Plaintiffs (b) precedents of costsharing arrangements in multi-district litigations and the terms

thereunder (c) the propriety of cost-sharing and its likely

effect on the litigation (d) the costs associated with Merck’s

production of documents (e) an appropriate price per page to be

paid by Plaintiffs and the propriety and amount of a cap to be 

Case 1:06-md-01789-JFK -JCF Document 158 Filed 09/12/07 Page 2 of 3
placed on Plaintiff's total payments (f) the timing and manner of 

payments and (g) the mechanics of ind~vidual plaintiff 

contributions, including the adjustment of contributions per 

plaintiff to account for after-filing plaintiffs. The briefs 

shall be limi~ed to 25 pages and shall conform to the Court's 

individual practices 

SO ORDERED. 

Dated: New Sptember York, New 12, YorkF 2007 

+ 

JOHN F. KEENAN 

United States District Judge 

Case 1:06-md-01789-JFK -JCF Document 158 Filed 09/12/07 Page 3 of 3