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In re Fosamax Products Liability Litigation

October 27, 2010

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO: JUDITH GRAVES
v.
MERCK & CO., INC.,



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

MEMORANDUM OPINION & ORDER

At oral argument on October 20, 2010, the Court addressed nine motions in limine made by the Plaintiff, Mrs. Judith Graves ("Graves"), and twenty-nine motions in limine made by the Defendant, Merck & Co., Inc. ("Merck"). After arguments were heard, the Court issued oral rulings on thirty-two of the motions, but reserved decision on six of the motions. The Court will address each of these motions below, in turn.

Graves' Motion in Limine #8

Graves moves to exclude "fear mongering" and argument that a verdict for the plaintiff would take a prescription choice away from doctors.

At oral argument, the Court reserved decision in part on this motion because the Court wished to make rulings based on the specific questions that would be posed to Dr. Bilezikian. Thus, the Court ordered Merck to provide the proposed questions. The Court continues to RESERVE judgment on this motion until it has received and reviewed Merck's submission.

Merck's Motion in Limine #2

Merck moves to exclude testimony from Dr. Robert Marx, D.D.S., concerning his opinion that Fosamax caused Graves' injury.

The Court reserved judgment on this motion because it was duplicative of Merck's motion to exclude expert testimony pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993). In its recent Opinion and Order on the Daubert motion in this case, the Court granted Merck's motion to exclude Dr. Marx's testimony. Graves v. Merck, No. 1:06-cv-05513-JFK, slip op. at 9-10 (S.D.N.Y. Oct. 22, 2010). Therefore, the motion is GRANTED.

Merck's Motion in Limine #4

Merck moves to exclude evidence concerning risks of Fosamax use other than osteonecrosis of the jaw ("ONJ"), including myocardial infarction, atrial fibrillation, esophageal cancer, and lung cancer. Merck argues that such evidence is irrelevant and, alternatively, that such evidence lacks an adequate foundation.

With respect to the relevance of risks other than ONJ, the Court previously noted in Boles v. Merck & Co., Inc. that such evidence may be relevant to Merck's defense that Fosamax is not defectively designed because its benefits outweigh its risks. (Boles I Motions in Limine Hr'g Tr. at 480:4-14 (citing Adams v. G.D. Searle & Co., 576 So. 2d 728, 733 (Fla. Dist. Ct. App. 1991)).)

However, before the Court can entertain evidence of other risks Fosamax may pose to a patient's health, Graves must establish by a preponderance of the evidence a proper foundation for her claim. Bourjaily v. United States, 483 U.S. 171, 176 (1987). That is to say, she must present sufficient evidence to show that Fosamax in fact causes these adverse events. To establish a proper foundation for her allegations that Fosamax causes risks such as myocardial infarction and femur fracture, Graves proffers the deposition testimony of Dr. Jane Cauley, an investigator for Merck's Fracture Intervention Trial ("FIT"), and a 2008 case-control chart review conducted by researchers from Cornell University's Hospital for Special Surgery. Graves proffers no evidence to show that Fosamax causes cancer. While Graves attempts to use Dr. Cauley's deposition to show that the FIT researchers found a relationship between Fosamax usage and myocardial infarction, Graves ignores Dr. Cauley's testimony that a safety report was never issued because "once the expert cardiologist reviewed and adjudicated all the records and the events, there it was--there was no association." (Cauley Dep. Tr. at 24:20-25:2.) Similarly, the article proffered by Graves to show that Fosamax causes femur fracture is inconclusive; the authors of that article state only that the fracture studies "may be a consequence of [Fosamax] use . . . although further investigation is necessary." (Pl. Opp. Ex. 16 at 349.) The Court finds that Graves' proffer fails to establish a foundation for an association--much less a causal relationship--between Fosamax use and these alleged non-ONJ risks by a preponderance of the evidence.

As Graves has failed to establish an adequate foundation for the alleged non-ONJ risks of Fosamax, Merck's ...


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