An appellate court ruled in favor of a pharmaceutical company in an appeal of a summary judgment order and a jury verdict in a multi-district products liability lawsuit. Secrest v. Merck, Sharp & Dohme Corp., part of In re: Fosamax Products Liability Litigation, No. 11-4358-cv (2nd Cir., Jan. 30, 2013). The Second Circuit affirmed a district court’s order granting summary judgment for the defendant (PDF file) on a failure to warn claim, and in a separate ruling issued the same day, it affirmed a jury verdict in favor of the defendant on a design defect claim. Several days after the court’s ruling, a federal jury ruled in favor of a different plaintiff on a failure to warn claim. The two cases illustrate the difficulty of proving causation and damages in large pharmaceutical cases.
Fosamax, the drug at the center of the litigation, was used to treat osteoporosis in women going through menopause. An alleged link between the drug and osteonecrosis of the jaw (ONJ), a condition in which the jawbone begins to die, led to a wave of products liability lawsuits around the country. Some plaintiffs also allege that the drug contributed to femur fractures and other bone injuries. The Judicial Panel on Multidistrict Litigation consolidated most of the pending federal lawsuits in the U.S. District Court for the Southern District of New York.
Plaintiff Linda Secrest filed suit against Merck, Fosamax’s manufacturer, in Florida in 2006, asserting causes of action for design defects and failure to warn of the drug’s risks. She claimed that she took Fosamax from June 1998 until March 2003, and then began taking it again under a different doctor in December 2003 through April 2005. She developed ONJ around March 2004. The trial court granted the defendant’s motion for summary judgment on her failure to warn claim, and a jury entered a verdict in Merck’s favor in October 2011 on the design defect claim.
The Second Circuit denied the plaintiff’s appeal of the jury verdict, finding that the trial court had properly instructed the jury regarding Florida products liability law. It also found that the court did not err in admitting evidence of dental injuries prior to her ONJ diagnosis. The appellate court issued a separate, per curiam order on her appeal of the summary judgment order, in order to address issues regarding the plaintiff’s expert witnesses.
The plaintiff, according to the appellate court, did not offer as an expert the doctor who was treating her when she developed ONJ, but rather the first doctor to prescribe her Fosamax. That doctor stated in a deposition in 2008 that he did not know she was still taking Fosamax between 2003 and 2005. The same doctor reportedly testified in 2011 that he knew she was taking the drug during that time period, and that he would have advised her against it had Merck warned of the risks. The trial court found no evidence of a causal connection to support a failure to warn claim, and the Second Circuit affirmed that ruling.
The products liability attorneys at Parr Richey Obremskey Frandsen & Patterson protect the rights of people in Indiana who have suffered injury due to dangerous or defective products, helping them to obtain compensation for their damages. Contact us today online or at (888) 532-7766 to set up a free and confidential consultation with one of our lawyers.
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Exploring the Limits of Indiana Rule of Evidence 702, Indiana Injury Lawyer Blog, June 12, 2012
Indiana Supreme Court Says Okay to Engineering Expert Providing Testimony as to Cause of Lower-Back Injury in Motor Vehicle Collision, Indiana Injury Lawyer Blog, February 11, 2012
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