UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

----------------------------------------X

IN RE: : No. 06 MD 1789 (JFK)

FOSAMAX PRODUCTS LIABILITY LITIGATION :

----------------------------------------: MEMORANDUM OPINION

This document relates to all cases. : AND ORDER

----------------------------------------X

JOHN F. KEENAN, United States District Judge:

This multidistrict litigation ("Fosamax MDL") concerns

allegations that Fosamax, a drug designed and manufactured by 

defendant Merck Sharp & Dohme Corp. ("Merck"), caused plaintiffs

to develop osteonecrosis of the jaw. Before the Court are: 

(1) motions by plaintiffs Sarah Raber and Reyna Vandercar to 

withdraw their Lexecon waivers such that their cases are 

remanded to the district in which they were filed; and (2) the 

selection of a case to replace Hester v. Merck & Co., Inc., No. 

06 Civ. 9450 (JFK), for trial as a bellwether. For the reasons 

stated below, plaintiffs' motions to withdraw their Lexecon

waivers are denied, and Raber v. Merck & Co., Inc., No. 06 Civ. 

6295 (JFK), shall replace Hester as the fifth bellwether trial 

in the Fosamax MDL. 

I. Plaintiffs' Request for Lexecon Waiver Withdrawal

Plaintiffs Sarah Raber, see Raber v. Merck & Co., Inc., 06 

Civ. 6295 (JFK), and Reyna Vandercar, see Vandercar v. Merck & 

Co., Inc., 06 Civ. 11329 (JFK), move pursuant to Titles II and 

III of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 1 of 7 PageID: 341
-2-

213, to withdraw waivers of their rights under Lexecon Inc. v. 

Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), to 

have their cases tried in the district courts where their cases 

were originally filed. 

In Lexecon, the Supreme Court of the United States ruled 

that an MDL transferee court could not transfer an MDL member 

case to itself for trial pursuant to 28 U.S.C. § 1404(a). 523 

U.S. at 40-41. The Supreme Court reasoned that the plain 

language of the MDL transfer statute, which requires the 

Judicial Panel on Multidistrict Litigation to remand every 

action "at or before the conclusion of . . . pretrial 

proceedings to the district from which it was transferred unless 

it shall have been previously terminated," 28 U.S.C. § 1407(a), 

"stands flatly at odds with reading [the MDL transfer statute] 

so broadly as to reach its literal limits, allowing a transferee 

court's self-assignment to trump the provision imposing the 

Panel's remand duty." Lexecon, 523 U.S. at 35. Therefore, a 

transferee court lacks authority to conduct a trial of an MDL 

member case not originally filed in the transferee court without 

the consent of the parties. 

To facilitate the settlement of the cases comprising the

Fosamax MDL, the Court directed the parties to select twentyfive cases that could be worked up through expert discovery and 

from which the Court and the parties would select cases for 

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 2 of 7 PageID: 342
-3-

trial as bellwethers. In re Fosamax Products Liability 

Litigation, No. 06 MD 1789 (JFK) (S.D.N.Y. Jan. 30, 2007) ("Case 

Management Order No. 9 (Early Trial Selection Process)"). So 

that the selected cases would constitute a representative sample 

of the cases comprising the Fosamax MDL,1

Plaintiffs have not demonstrated that the ADA provides a 

legal basis for withdrawal of a Lexecon waiver. Title II of the 

ADA governs public transportation by intercity and commuter 

rail, 42 U.S.C. §§ 12161-65, and prohibits discrimination on the 

basis of disability by "public entities," which are defined to 

include State or local governments, departments, agencies, and 

instrumentalities of State or local governments, and the 

National Railroad Passenger Corporation, 42 U.S.C. §§ 12131-32. 

the Court permitted the 

parties to select cases not originally filed in the Southern 

District of New York on the condition that, for each case 

selected that was not filed in the Southern District of New 

York, the parties would execute Lexecon waivers. See Case 

Management Order No. 9, ¶ 2. Now plaintiffs Sara Raber and 

Reyna Vandercar request leave to withdraw their Lexecon waivers 

as an accommodation under Titles II and III of the Americans 

with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-213. 

 1 See Manual for Complex Litigation (Fourth) § 22.315 ("If 

[bellwether trials] are to produce reliable information about 

other mass tort cases, the specific plaintiffs and their claims 

should be representative of the range of cases.").

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 3 of 7 PageID: 343
-4-

Title III of the ADA prohibits discrimination by "public 

accommodations," which are defined to include "private 

entities," the operations of which "affect commerce." 42 U.S.C. 

§§ 12181(7), 12182(a). Even liberally construed, the ADA does 

not provide a mechanism for the withdrawal of a Lexecon waiver. 

The Lexecon waivers at issue here, on which both parties 

have relied during the discovery and bellwether selection phases

of the Fosamax MDL, reflect plaintiffs' and defendant's consent 

to trial before this Court, and are analogous to a stipulation 

of fact or a stipulation to proceed for trial before the court 

without a jury. In the Second Circuit, one party may not 

unilaterally dissolve a stipulation made with the advice of 

counsel and supported by sufficient consideration. Merchants 

Bank v. Vescio, 54 F. App'x 513, 513 (2d Cir. Dec. 20, 2002);

see also United States ex. rel. Reilly v. New England Teamsters 

& Trucking Indus. Pension Fund, 737 F.2d 1274, 1278 (2d Cir. 

1984) ("A party to a stipulation is not entitled to withdraw 

from its agreement unilaterally."). The Second Circuit has 

ruled that a district court may invalidate a stipulation only 

upon a "showing of good cause such as fraud, collusion, mistake 

or duress, or [where] the agreement is unconscionable or 

contrary to public policy, or . . . [the text of the agreement] 

suggests an ambiguity indicating that the words did not fully 

and accurately represent the parties' agreement." Katel Ltd. 

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 4 of 7 PageID: 344
-5-

Liab. Co. v. AT & T Corp., 607 F.3d 60, 66 (2d Cir. 2010) 

(quoting McCoy v. Feinman, 99 N.Y.2d 295, 302 (2002)). In this 

case, Raber and Vandercar executed valid Lexecon waivers, and 

thereby consented to trial before this Court in exchange for 

expedited discovery and the possibility of an expedited trial 

schedule. Therefore, a showing of good cause is required for 

withdrawal of the Lexecon waivers. 

Raber requests an accommodation due to her husband's ill 

health and need for medical treatment in Pensacola, Florida, and 

New Orleans, Louisiana. She requests withdrawal from her 

Lexecon waiver so that her case can be tried in the Northern 

District of Florida, though according to her complaint, Raber is 

a resident of Arkansas. While inability to attend trial in the 

Southern District of New York may constitute good cause 

warranting withdrawal from an otherwise valid Lexecon waiver, 

Raber's request mentions only the illness of her husband, and 

does not explain why Raber, who is a resident of Arkansas, would 

be able to attend trial in the Northern District of Florida, but 

not in the Southern District of New York. Moreover, if Raber's 

husband can travel to the Northern District of Florida, the 

Court does not understand why he is unable to travel to the 

Southern District of New York, particularly in view of the fact

that there likely are more flights from Arkansas to airports in 

the New York area (Newark, LaGuardia, Kennedy) than to those in 

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 5 of 7 PageID: 345
-6-

the Northern District of Florida. Because she has not 

articulated why trial in the Northern District of Florida would 

alleviate the hardship of travelling to pursue her claims 

against Merck, Raber has failed to show good cause warranting 

withdrawal of her Lexecon waiver. 

Vandercar requests an accommodation due to her own ill 

health and travel restrictions imposed by her doctors. She is a 

resident of Florida and asks the Court to remand her case to the 

Middle District of Florida. Vandercar currently requires 

medical treatment close to home that would prevent her from 

attending any trial in the Southern District of New York. 

However, Vandercar's case has not been scheduled for trial and 

therefore, withdrawal of her Lexecon waiver is premature at this 

time. Though the Court denies both plaintiffs' requests for 

withdrawal of their Lexecon waivers, Vandercar may renew her 

request for withdrawal if it is selected for trial before this 

Court. 

II. Selection of a Replacement Bellwether Case

On September 9, 2010, the Court directed the Plaintiffs'

Steering Committee ("PSC") and Merck "each to select one case 

for trial from the pool of trial-ready cases," and also to 

"choose two cases to serve as replacements in the event that a 

selected case does not proceed to trial." In re Fosamax Prods.

Liab. Litig., No. 06 MD 1789 (JFK) (S.D.N.Y. Sept. 9, 2010) 

Case 3:11-cv-03167-JAP-LHG Document 44 Filed 04/27/11 Page 6 of 7 PageID: 346
(order concerning selection of additional bellwether cases). By 

letter dated September 17, 2010, Merck selected Hester as its 

primary selection and Raber v. Merck & Co., Inc., No. 06 Civ. 

6295 (JFK) , as its first alternate selection. Prior to the 

commencement of trial, plaintiff Carolyn Hester withdrew her 

claims against Merck. See Hester v. Merck & Co., Inc., No. 06 

Civ. 9450 (JFK) (S.D.N.Y. Apr. 15, 2011) (stipulation and order 

of dismissal with prejudice) . Therefore, according to the 

Court's September 9, 2010 Order, Merck's alternate selection 

shall replace Hester. 

III. Conclusion 

For the reasons stated above, plaintiffs' motions to 

rescind their Lexecon waivers are DENIED. 

The Court ORDERS that Raber v. Merck & Co., Inc., 06 Civ. 

6295 (JFK) , shall replace Hester as the fifth bellwether case in 

the Fosamax MDL. The Raber trial is hereby scheduled to 

commence on November 7, 2011, at 10:00 a.m. 

SO ORDERED. 

Dated: New York, New York 

April 27, 2011 

-- ---

�ot. KEENAN 

United States District Judge 

-7-