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In re Fosamax Products Liability Litigation

United States District Court, Second Circuit

July 1, 2013

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION.
v.
Merck & Co., Inc. This document relates to: Scheinberg No. 08 Civ. 4119 (JFK).

ORDER

JOHN F. KEENAN, District Judge.

Before the Court is Defendant's motion for judgment as a matter of law under Rule 50(b) on Plaintiff's failure to warn claim. For the reasons that follow, the motion is denied.

I. Background

This was the fifth case selected for trial as a bellwether in the In re Fosamax Products Liability Litigation multidistrict litigation ("MDL"). This MDL involves claims that Fosamax, a drug designed and produced by defendant Merck Sharp & Dohme Corp. ("Merck"), caused users of Fosamax to suffer from a condition known as osteonecrosis of the jaw ("ONJ"). In the instant case, plaintiff Rhoda Scheinberg ("Scheinberg" or "Plaintiff") brought strict liability and negligence claims on theories of design defect and failure to warn, in addition to claims for fraudulent misrepresentation and concealment, and breach of express and implied warranty. She also sought punitive damages. Scheinberg began taking Fosamax in 2000, and continued taking it through 2006. Her prescribing physician between 2004 and 2006 was Dr. Dunn. (Def. 56.1 ¶ 1.) On October 30, 2006, Plaintiff had a tooth extraction and subsequently suffered from delayed healing. (Id. ¶¶ 3-4.) Plaintiff's expert, Dr. Richard Kraut, opined that the delay Scheinberg experienced in healing from the tooth extraction was ONJ, and that her use of Fosamax caused it. Another expert proffered by Plaintiff, Dr. Suzanne Parisian, testified that the Fosamax label was insufficient to warn of the risk of ONJ.

Prior to trial, Defendant moved for summary judgment on all claims. The Court granted the Defendant's motion with respect to Plaintiff's claims for breach of warranty, fraudulent misrepresentation and concealment, and punitive damages, but denied it with respect to Plaintiff's claims for design defect and failure to warn.

Merck twice moved for judgment as a matter of law during trial pursuant to Rule 50(a): at the close of Plaintiff's case, and again after both sides rested. The Court denied both motions and the case was submitted to the jury. On February 5, 2013, the jury returned a verdict in favor of Merck on the design defect claim and in favor of Scheinberg on the failure to warn claim, awarding Scheinberg $285, 000.

II. Discussion

Merck timely filed the instant motion pursuant to Rule 50(b) on March 5, 2013. It contends that it is entitled to judgment as a matter of law on Plaintiff's failure to warn claim.

A. Rule 50

"Under Rule 50(a), a party may move for judgment as a matter of law during trial at any time prior to the submission of the case to the jury." Galdieri-Ambrosini v. Nat'l & Dev. Corp. , 136 F.3d 276, 286 (2d Cir. 1998); see Fed.R.Civ.P. 50(a). Under Rule 50(b), if the Court does not grant the Rule 50(a) motion at the close of evidence, the moving party may renew its motion for judgment as a matter of law under Rule 50(b) within 25 days of an unfavorable judgment, but it "is limited to those grounds that were specifically raised in the prior [Rule 50(a) motion]." Galdieri-Ambrosini , 136 F.3d at 286; see Fed.R.Civ.P. 50(b).

The movant faces a "high bar, " Lavin-McEleney v. Marist Coll. , 239 F.3d 476, 479 (2d Cir. 2001); motions for judgment as a matter of law "should be granted cautiously and sparingly." Meloff v. N.Y. Life Ins. Co. , 240 F.3d 138, 145 (2d Cir. 2001). In deciding the motion, the Court "must view the evidence in a light most favorable to the non-movant and grant that party every reasonable inference that the jury might have drawn in its favor." Merrill Lynch Interfunding, Inc. v. Argenti , 155 F.3d 113, 120-21 (2d Cir. 1998) (quoting Samuels v. Air Transport Local 504 , 992 F.2d 12, 14 (2d Cir. 1993)). The Court "may not itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-Ambrosini , 136 F.3d at 286. The Court may properly grant such a motion only where it "finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for" the non-movant. Fed.R.Civ.P. 50(a); see Arlio v. Lively , 474 F.3d 46, 51 (2d Cir. 2007) (holding that judgment as a matter of law should be granted when "the evidence, viewed in the light most favorable to the nonmoving party is insufficient to permit a reasonable juror to find in [the non-moving party's] favor").

B. Analysis

Merck argues that it is entitled to judgment as a matter of law because the Fosamax label was sufficient under New York law. According to Merck, the label warned doctors of the "precise malady" incurred by plaintiff, which is the New York standard. Therefore, Merck avers, no reasonable juror could have concluded that the label was inadequate. Merck points to nine cases where labels that include the "precise malady" alleged by Plaintiff were determined adequate as a matter of law.

Merck is correct that courts applying New York law have held that "prescription medicine warnings are adequate when... information regarding the precise malady incurred was communicated in the prescribing information." Alston v. Caraco Pharm. Inc. , 670 F.Supp.2d 279, 284-85 (S.D.N.Y. 2009); see also Sita v. Danek Med., Inc. , 43 F.Supp.2d 245, 260 (E.D.N.Y. 1999) (granting summary judgment to drug manufacturer where manufacturer had warned physician "against the precise usage and injuries in question"). But a warning is not automatically sufficient simply because it includes certain "magic words." While "the language these decisions might at first seem to indicate that a manufacturer satisfies its duty to warn of a drug's side effects simply by mentioning those side effects in the drug's label, " courts have recognized the ...


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