A ruling was handed down a few weeks back that is considered to be very important in the Fosamax litigation. A federal judge in New York denied a motion for summary judgment filed by Merck & Co. The judge ruled that the Plaintiff could show causation. The Plaintiff introduced sufficient evidence showing that the osteoporosis drug Fosamax was the cause of her bone disease, according to the judge. The case had been selected as the third of three bellwether trials in multidistrict products liability litigation concerning Fosamax, which was made by Merck & Co. As we reported previously, the first of these cases ended in a mistrial. Merck was granted summary judgment in the second case.
The Plaintiff in this case sued Merck for negligent failure to warn under Indiana law. She developed osteonecrosis of the jaw after taking Fosamax. Merck argued that the Plaintiff could not establish causation. But the court concluded that the Plaintiff’s evidence was sufficient to show that the doctor could have chosen a different course of treatment for her had he been adequately warned. Moreover, the court decided that the scientific methodology used by the Plaintiff’s expert – a “differential diagnosis” – was of sufficient reliability for him to render an opinion that Fosamax was the cause of the Plaintiff’s injuries. The court’s order reads:
Merck’s objections to the soundness of [the expert’s] opinion are noted, but they do not lead the court to conclude that there is such a large analytical gap between the medical records and his conclusion as to warrant exclusion.
This is a most significant development in the overall Fosamax litigation. We have always felt that causation shouldn’t be a problem in these cases. Andy Birchfield and I will try a Fosamax case in Montgomery, Alabama, in May.
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