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Harrison v. Merck & Co., Inc.

United States District Court, N.D. New York

March 2, 2015

MERCK & CO., INC., Defendant.


LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Dennis Richard Harrison ("Plaintiff") commenced this action on June 26, 2006, in New York Supreme Court, County of Ulster, alleging injuries caused by the prescription drug Vioxx. Dkt. No. 1-1 ("Complaint"). Defendant Merck & Co., Inc. ("Defendant") removed the action, which was then transferred to the Multi-District Litigation ("MDL") for Vioxx in the Eastern District of Louisiana. Dkt. Nos. 1; 6. The action was then remanded to the Northern District of New York after it was determined that Plaintiff's action raised issues that were unrelated to the other claims in the MDL. Dkt. No. 11.

Presently before the Court are Defendant's Motion for summary judgment and Plaintiff's Cross-Motion for summary judgment. Dkt. Nos. 29 ("Motion"); 30-2 ("Cross-Motion"). Also before the Court are Plaintiff's Second Motion for reconsideration and Plaintiff's Motion to compel Defendant to provide the Court with additional documents. Dkt. Nos. 38 ("Motion for Reconsideration"); 41 ("Motion to Compel"). For the following reasons, Defendant's Motion for summary judgment is granted, and Plaintiff's Cross-Motion for summary judgment, Second Motion for reconsideration, and Motion to compel are all denied.


Plaintiff alleges that Vioxx, a prescription drug produced by Defendant, caused a broken femur he suffered to heal improperly. Compl. ¶¶ 1, 26. Plaintiff is a resident of New York and Defendant is a corporation organized under the laws of the State of New Jersey. Id . ¶¶ 1, 2.

A. Plaintiff's Medical History

Plaintiff has a significant medical history. In his twenties, Plaintiff was diagnosed with ankylosing spondylitis, a degenerative form of inflammatory arthritis affecting the spine and major weight-bearing joints. Def. SMF ¶¶ 5-6. Plaintiff has had several surgeries in connection with that condition. Id . ¶¶ 8, 12, 13. Plaintiff has also suffered from a number of other long-standing conditions, including anemia. Id . ¶ 31. Several physicians have diagnosed Plaintiff with osteoporosis. See id. ¶ 29 (citing Dkt. No. 29-13 ("SSA Records") at 18, 21). Plaintiff disputes that diagnosis. Dkt. No. 29-28 ("Plaintiff Letter") at 2.

Due to his medical conditions, Plaintiff has taken numerous pain medications. Def. SMF ¶ 25. Plaintiff took Vioxx uninterruptedly over a period beginning near its introduction to the market in May 1999 until its withdrawal in September 2004. Compl. ¶ 43. At the time of his 2003 broken femur, Plaintiff was also taking ibuprofen, prednisone, Tylenol # 4, and Oxycontin for pain relief. Def. SMF ¶ 27.

B. January 2003 Broken Femur

On January 9, 2003, Plaintiff slipped on ice and suffered a broken femur. Def. SMF ¶¶ 37-38. Plaintiff was admitted to Benedictine Hospital in Kingston, New York, and the following day, "had an open reduction and internal fixation of the right femur with a plate, screws and cerclage wires, " performed by Dr. William Null. Id . ¶ 39. Plaintiff was discharged on January 13. Id . Plaintiff returned ten days later for re-evaluation and removal of his stitches. Id . ¶ 40. X-rays showed the fracture had "anatomic alignment, with excellent position and alignment of the cerclage wires, thigh plate, and screws." SSA Rds. at 38. At this appointment, Dr. Null noted that Plaintiff had been bearing weight on the leg, when it was supposed to be non-weightbearing. See Def. SMF ¶ 41.

Plaintiff next went for a follow-up on February 20, 2003. Id . ¶ 42. At this visit, x-rays showed that "two of the three cerclage wires" had torn and one proximal screw had "angulated about 20 degrees." Id . ¶ 43. Dr. Null's opinion was that Plaintiff had refractured his right femur and the fixation had failed due to trauma. Id . Dr. Null noted that Plaintiff had continued not to use crutches as instructed, and had suffered a fall down the stairs in his home. SSA Rds. at 39. Plaintiff later disputed that he fell down the stairs and claims that the Doctor misunderstood him, and that in fact only his crutches fell down the stairs. Dkt. No. 29-9 ("Plaintiff Deposition") at 219:6-12.

On February 25, 2003, Plaintiff was admitted to Albany Medical Center to undergo a revision surgery on his right femur. Def. SMF ¶ 44. When the incision was opened up, doctors found pus and fluid, samples of which were later determined to contain enterococcus fecalis bacteria. See id. Dr. Paul Hospodar irrigated the wound, removed the broken hardware, and installed an anti-biotic spacer. See id. Plaintiff was put on a six-week course of intravenous antibiotic treatment, and on March 5, 2003, was discharged to a nursing home. Id . ¶ 45.

Over the next two months, Dr. Hospodar continued to monitor Plaintiff for signs of infection. Dkt. No. 29-15 ("Capital Orthopedic Records") at 15-16. X-rays taken on April 17, 2003, showed "some signs of healing of the fracture although minimal." Id. at 15. On May 16, 2003, Dr. Hospodar observed that Plaintiff appeared to have cleared his infection, and tentatively planned to schedule Plaintiff for a revision surgery in June. Id. at 16. A few days later, however, Plaintiff requested copies of his medical records from Dr. Hospodar in order to get a second opinion. See Def. SMF ¶ 48. After Plaintiff was "belligerent" to his staff, Dr. Hospodar limited Plaintiff's treatment to an as-needed basis on June 5, 2003, with the understanding that Plaintiff would transfer to another doctor. See id. ¶ 50; Cap. Ortho. Rds. at 17.

On June 23, 2003, Plaintiff was admitted to the Valley Hospital in New Jersey. Def. SMF ¶ 51. On June 27, 2003, Dr. Joseph Pizzuro performed surgery on Plaintiff, removing the anti-biotic spacer, and completing a revision of his right total hip replacement and a cemented proximal femoral replacement. Id . At ...

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