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In re Fosamax Products Liability Litigation

October 30, 2009


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

MDL No. 1789

This Document Relates to Barbara Anne Miller v. Merck : & Co., Inc., 1:06-cv-5087(JFK)


In this multidistrict litigation, hundreds of product liability actions have been filed by individuals who allege to have developed osteonecrosis of the jaw ("ONJ") from ingesting defendant Merck & Co., Inc.'s ("Merck") prescription osteoporosis drug, Fosamax. Before this Court is Merck's motion to dismiss the complaint of a single plaintiff, Barbara Anne Miller ("Miller"), on the ground of forum non conveniens. For the reasons that follow, the motion is granted.


Plaintiff Miller is a citizen and resident of England. She alleges to have developed ONJ from ingesting Fosamax, manufactured by defendant Merck, and Actonel, manufactured by defendants Aventis Pharmaceuticals, Inc. ("Aventis") and Proctor & Gamble Pharmaceuticals, Inc. ("P&G"). Miller provides in her sworn profile form that she was prescribed and ingested the drugs at issue in England and received medical treatment in England for a number of oral conditions, including ONJ.

On June 30, 2006, Miller filed a Complaint in this Court asserting claims of strict liability, negligence, and breach of warranty. On August 16, 2006, the Judicial Panel on Multidistrict Litigation (the "JPML") ordered the transfer of all pending actions against Merck relating to Fosamax before this Court for coordinated pretrial proceedings. Since 2006, Merck and the Plaintiffs Steering Committee (the "PSC") have engaged in substantial discovery, and three bellwether cases have been selected for trial.

Merck, joined by defendants P&G and Aventis, now moves to dismiss Miller's Complaint on the ground of forum non conveniens. Merck argues that Miller's claims have little relationship to the United States and therefore should be dismissed so they can be litigated in England. Merck claims that the public and private interests on balance demonstrate that this action should be litigated in Miller's home country. Regarding this point, Merck notes, among other things, that: (1) Miller was prescribed Fosamax and Actonel by doctors in England; (2) Miller ingested these drugs in England and as a result allegedly sustained injuries there; (3) Miller received treatment for oral conditions in England; and (4) Fosamax and Actonel were marketed and sold in England subject to its regulatory scheme.

Plaintiff does not dispute these facts. Plaintiff argues, however, that Merck incompletely and inadequately disclosed facts relevant to the balance of the public and private interests, and therefore it has failed to satisfy its burden of establishing that the case should be dismissed from Plaintiff's selected venue. Plaintiff notes that Merck has not (1) disclosed where the drugs ingested by Miller were manufactured; (2) disclosed pertinent information regarding the approval and regulation of Fosamax and Actonel in the United Kingdom; or (3) disclosed the location of the individuals that the parties would likely call as witnesses at trial. Plaintiff also argues that private interests favor adjudicating this case in the United States, as the majority of documentary evidence, including Miller's medical records and Merck company records, already has been compiled in the United States since this multidistrict litigation began roughly three years ago.


I. The Forum Non Conveniens Standard

"The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general venue statute." In re Union Carbide Corp., 634 F. Supp. 842, 845 (S.D.N.Y. 1986), aff'd 809 F.2d 195 (2d Cir. 1987), cert. denied, 484 U.S. 871 (1987); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947). The Supreme Court has declined to "lay down a rigid rule" to govern the forum non conveniens determination, but emphasizes a flexible approach that "turns on [the] facts." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981) (citation omitted). The Court of Appeals for the Second Circuit has developed a three-step process for the district court to follow in exercising its discretion. The standard requires the Court to: (1) determine the degree of deference to afford the plaintiff's choice of venue; (2) consider the adequacy of defendant's proposed alternative forum; and (3) "balance factors of private and public interest to decide, based on weighing the relative hardships involved, whether the case should be adjudicated in the plaintiff's chosen forum or in the alternative forum suggested by the defendant." Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir. 2003); see also Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005); Iragorri v. United Tech. Corp., 274 F.3d 65, 73-74 (2d Cir. 2001) (en banc).

A. Appropriate Amount of Deference

The forum non conveniens analysis begins with a presumption in favor of the plaintiff's choice of forum, as the court can assume that it is convenient. Piper Aircraft, 454 U.S. at 255; Gulf Oil, 330 U.S. at 508 ("[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."). However, "[i]t is well settled in this Circuit that a foreign plaintiff's choice of forum deserves less deference than the same choice by a domestic plaintiff." Turedi v. Coca-Cola, Co., No. 06-5464-cv, 2009 WL 1956206, at *2 (2d Cir. July 7, 2009). In such circumstances, "it is 'much less reasonable' to presume that the ...

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