In Re Fosamax Products Liability Litigation
815 F. Supp. 2d 649
S.D.N.Y.2011Background
- Fosamax MDL bellwether Raber moves for partial reconsideration of April 27, 2011 denial of Lexecon waiver withdrawal.
- Court previously held ADA does not provide basis to withdraw Lexecon waiver and that good cause must be shown for withdrawal.
- Lexecon waivers tied parties to trial in REMAND court after pretrial, but discovery had occurred in this MDL; withdrawal affects trial venue allocation.
- Plaintiff alleged increased burden and proximity to Pensacola, Florida as grounds for withdrawal.
- Raber’s initial Request for Accommodation contained minimal facts and did not raise new arguments later asserted in motion for reconsideration.
- Court denied reconsideration for non-compliance with Local Rule 6.3 and for lack of good cause even if new arguments were considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with L.C.R. 6.3 | Raber asserts new ADA-based and factual grounds justify reconsideration. | New arguments were not raised in the original motion or request; improper under 6.3. | Denied for failure to comply with 6.3. |
| Good cause to withdraw Lexecon waiver | Withdrawal justified by burden and proximity to Pensacola and husband’s care needs. | No showing of good cause; location change not to transferor court; ADA not basis for withdrawal. | Denied; no good cause shown. |
| Governing standard for Lexecon waiver withdrawal | Greenspahn standard should apply for withdrawal of stipulations. | Katel standard governs Lexecon waivers in this MDL. | Katel standard applies; waivers require good cause. |
| Motion to transfer §1404(a) implications | Motion effectively seeks transfer to Northern District of Florida. | ADA cannot substitute §1404(a) analysis; timing and scope improper. | Motion to transfer not properly raised; §1404(a) not invoked. |
Key Cases Cited
- Katel Ltd. Liab. Co. v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010) (withdrawal of stipulations requires good cause)
- McCoy v. Feinman, 99 N.Y.2d 295 (2002) (upholds NY approach to enforcing stipulations unless good cause)
- Greenspahn v. Joseph E. Seagram & Sons, Inc., 186 F.2d 616 (2d Cir. 1951) (old standard referenced but not controlling for modern withdrawal)
- Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y.435 (N.Y. 1928) (court has power to relieve stipulations but requires good cause)
- In re Frutiger's Estate, 29 N.Y.2d 143 (1971) (court may restore status quo with good cause)