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In re Fosamax Products Liability Litigation

January 21, 2009

MERCK & CO., INC., : & ORDER NO. 1:06-CV-9449-JFK

The opinion of the court was delivered by: John F. Keenan, United States District Judge

Memorandum Opinion

Plaintiff Ronna Greene moves to amend her complaint to join additional defendants. [doc. # 65.] For the reasons stated below, the motion is GRANTED.


This multidistrict litigation ("MDL") consolidates for pre-trial coordination all federal cases in which plaintiffs allege that the prescription osteoporosis drug Fosamax, made by defendant Merck & Co., Inc., ("Merck"), caused them to develop a condition known as osteonecrosis of the jaw ("ONJ"). At the present time, there are approximately 675 open cases in this MDL.

There also exists a set of cases in which plaintiffs allege that their ONJ was caused by taking both Fosamax and Actonel, a competing osteoporosis drug manufactured by Proctor & Gamble ("P&G") and sanofi-aventis US L.L.C. ("Aventis"). Like Fosamax, Actonel belongs to the class of pharmaceuticals called oral bisphosphonates. The Judicial Panel on Multidistrict Litigation did not include these "co-ingest cases" in this MDL, but left it up to my discretion to coordinate them alongside it. Currently, there are approximately twenty-five co-ingest cases pending before the Court.*fn1

In September 2006, Plaintiff Ronna Greene filed a complaint against Merck alleging that she developed ONJ from her use of Fosamax only. In October 2006, the case became one of the earliest to be transferred to these MDL proceedings. Case Management Order ("CMO") No. 10, which was issued on January 30, 2007, designated Greene's case as among those potentially eligible for inclusion in an early trial pool to be made up of twenty-five cases. Pursuant to CMO 10, these twenty-five cases were to proceed through fact discovery on an expedited basis. From the twenty-five, three eventually would be selected for early trial. If any of the twenty-five cases was dismissed or settled pre-trial, it would be replaced with a case from a back up trial pool.

On February 9 2007, Greene completed a Plaintiff Profile Form ("PPF") and submitted it to Merck. Her PPF disclosed that she had taken both Fosamax and Actonel for unknown durations of time. Records obtained from CVS Pharmacy around that time showed that, between December 2002 and January 2005, Greene filled only one Actonel prescription at that pharmacy: a refill for a one-month's supply dispensed in January 2005.

On February 27, 2007, Merck's counsel wrote a letter to the Court jointly on behalf of Merck and the Plaintiff's Steering Committee ("PSC") to relate that "both sides have agreed, subject to the Court's approval, that the universe of initial trial cases should not include any case involving multiple pharmaceutical defendants." Pursuant to this agreement, fourteen cases involving multiple pharmaceutical defendants were eliminated from the list of cases eligible to become part of the early trial pool. Because Greene's complaint did not name any pharmaceutical defendants other than Merck, it remained eligible.

On June 11, 2007, the twenty-five trial pool cases were selected. The cases that were not selected, including Greene's, formed the back up trial pool.

Expedited discovery in the trial pool cases proceeded according to schedule. Meanwhile, in late July or early August 2007, Plaintiff's counsel received records from another pharmacy revealing that Plaintiff had filled Actonel prescriptions there from July 20, 2004, until December 14, 2004, in addition to the January 2005 refill at CVS. It then became apparent to Greene and her counsel that her bisphosphonate treatment consisted of seven months of Actonel use and six months of Fosamax use.

Nevertheless, Greene did not seek to add Actonel claims nor join P&G and Aventis as defendants, and her case remained in the back up pool. Her counsel, the law firm of Levin Papantonio et al., is lead counsel for the PSC and represents many plaintiffs in this MDL. On behalf of clients who, like Greene, had taken both drugs, the firm generally filed Fosamax claims in this MDL but did not file any Actonel claims. Instead, the firm would enter into a tolling agreement with P&G and Aventis, postponing the filing of Actonel claims.

In September 2008, with discovery in the trial pool cases winding down and scheduled to be completed the following month, Merck sought and obtained leave to take depositions in the back up cases. Merck deposed Greene on September 5, 2008. At the deposition, Greene's counsel informed Merck that any Actonel claim that Greene had would be tolled pursuant to a tolling agreement with P&G and Aventis. Greene executed that tolling agreement three days later. Merck continued to take fact discovery depositions in Greene's case, deposing her oral surgeon and two primary care physicians.

Shortly after fact discovery in the trial pool cases closed on October 1, 2008, Merck informed Plaintiff's counsel that it intended to select a back up case to fill a vacancy in the trial pool created by a dismissal in July 2008. Greene's counsel took the position, for the first time, that "Ms. Greene's case was no longer eligible for the trial pool because of the claim that existed against P&G and Aventis." (Pl.'s Reply 5.)

On October 10, 2008, Greene's counsel informed the Court of its intent to file the instant motion to amend the complaint to add Actonel claims and to join P&G and Aventis as defendants. A pre-motion conference ...

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