Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Fosamax Products Liability Litigation

United States District Court, S.D. New York

August 13, 2014

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION
v.
Merck, Sharpe & Dohme Corp., No. 13 Civ. 6170 (JFK). This document relates to: Finlay

AYLSTOCK, WITKIN, KREIS & OVERHOLTZ, PLLC, Daniel Thornburg, for Plaintiff Leann Finlay.

RIVKIN RADLER LLP, By: Jacqueline Bushwack, for Nonparty Novartis Pharmaceuticals Corporation.

OPINION & ORDER

JOHN F. KEENAN, District Judge.

Before the Court is Plaintiff's motion for leave to file an amended complaint that adds Novartis Pharmaceuticals as a defendant. Novartis opposes the motion on the grounds that the amendment would be futile because the proposed claims against Novartis are time-barred. For the reasons that follow, Plaintiff's motion to amend the complaint is denied.

I. Background

This MDL involves claims that the drug Fosamax or its generic equivalent, alendronate sodium, caused users to suffer from a condition known as osteonecrosis of the jaw ("ONJ"). Plaintiffs have asserted claims against Merck, the maker of Fosamax. Some plaintiffs have also brought claims against other bisphosphonate manufacturers.

The instant Plaintiff, Leanne Finlay, brings claims on behalf of her deceased mother, Carolee Corley ("Decedent"). Their action against Merck was originally filed in Florida state court on July 15, 2011. That case was transferred to the U.S. District Court for the District of New Jersey, and was later refiled here in the Southern District of New York. By stipulation between Plaintiff and Merck, the filing here relates back to July 15, 2011, when Plaintiff filed her initial case in Florida.

The extant complaint in this action, dated September 3, 2013, lists Merck and five unnamed "New Jersey Corporations" as defendants. Paragraph 11 states:

The true names and capacities of those Defendants designated as Entities no. 1 through 5, whether individual, corporate, associate or otherwise, are unknown to Plaintiff at the time of filing this Complaint and Plaintiff, therefore, sues said Defendants by such fictitious names and will ask leave of Court to amend this complaint to show their true names or capacities when the same have been ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the said entities proximately caused injury and damage to the Decedent as alleged herein.

The extant complaint alleges in addition to Fosamax, Decedent had also taken Zometa, an intravenous bisphosphonate manufactured by Novartis. (Compl. ΒΆ 26.) But the complaint does not mention Novartis, and alleges only that Fosamax caused Decedent's injuries.

It is undisputed that Plaintiff and Novartis entered into a tolling agreement on September 19, 2013, sixteen days after the filing of the extant complaint. The agreement tolled the statute of limitations for claims by Plaintiff against Novartis that were timely as of that date, but Novartis expressly reserved the right to argue that Plaintiff's claims were already time-barred by then.

On May 30, 2014, the day before the tolling agreement expired, Plaintiff moved for leave to file an amended complaint inserting Novartis in place of one of the John Doe defendants. Novartis opposes the motion on the grounds that the amendment would be futile.

II. Discussion

Rule 15(a)(2) of the Federal Rules of Civil Procedure governs the amendment of pleadings once the time for amendment as of right has elapsed. The Rule provides that leave to amend should be freely given "when justice so requires." Fed.R.Civ.P. 15(a)(2); see Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 186 (2d Cir. 2012). However, a district court has the broad discretion to deny leave "for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007) (citing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.