United States District Court, S.D. New York
RONALD PURDY, as personal representative of Sherry Purdy, Plaintiff,
MERCK & CO., INC. Defendant.
MEMORANDUM OPINION & ORDER
F. KEENAN, United States District Judge.
Ronald Purdy, as personal representative of Sherry Purdy, now
deceased, brings this action seeking damages allegedly
resulting from Ms. Purdy's use of the prescription drug
Fosamax. Defendant Merck & Co., Inc. moves for dismissal,
arguing that Plaintiff has failed to comply with the
Court's Lone Pine order. For the reasons set
forth below, the application is denied.
April 4, 2016, this Court entered a Lone Pine order
requiring Plaintiff to produce, among other things, a Rule
26(a)(2) expert report. The expert report was to be
"signed and sworn to by a qualified physician or other
medical expert" and was to include the following:
a. The name, professional address, and curriculum vitae of
the expert, including a list of all publications authored by
the expert within the preceding ten years;
b. A list of the Plaintiff's medical records reviewed by
the expert prior to the preparation of the Expert Report, as
well as copies of any such records not posted on the website
of MRC, the vendor that has collected various medical records
in this litigation and made those records available to
plaintiffs pursuant to the terms of paragraph 5 of CMO 13;
c. The dates during which the Plaintiff used Fosamax and
references to the evidence relied upon to determine such use
(either the actual pages or the Bates stamped numbers);
d. The name(s) of the physician(s) who prescribed Fosamax to
e. Whether the expert believes to a reasonable degree of
medical certainty that Fosamax caused Plaintiff's alleged
injury, and if so, the factual and medical/scientific bases
for that opinion; and f. The date, at least by month and
year, when the . expert believes to a reasonable degree of
medical certainty the Plaintiff first developed the injury
alleged to have been caused by Fosamax.
(Case Management Order, Apr. 4, 2016, at 1-2, ECF No. 30.
[hereinafter Lone Pine Order].) The deadline for
Plaintiff to produce the required materials was June 3, 2016.
1, 2016, Plaintiff's counsel produced an unsigned,
electronic version of an expert report by Dr. Gourang Patel,
a clinical pharmacist, pharmacologist/toxicologist, and
Assistant Professor at RUSH University Medical Center. The
e-mail attaching the report indicated that Plaintiff's
counsel was working to obtain a signed and notarized copy of
the report. On June 8, 2016, Plaintiff's counsel produced
the signed and notarized version.
17, 2016, Merck submitted a letter to the Court arguing that
Dr. Patel's report fails to comply with the requirements
of the Lone Pine order and that, pursuant to that
order, Plaintiff therefore had until. July 5, 2016, to show
cause why the complaint should not be dismissed with
prejudice. Plaintiff submitted a response on July 1, 2016,
attaching a revised report. Merck replied on July 12, 2016,
arguing that the revised report did not cure the deficiencies
and that Plaintiff's complaint should be dismissed with
prejudice. Plaintiff responded with another letter on July
seeking dismissal, Merck points to three alleged deficiencies
in Dr. Patel's revised report of July 1, 2016. First,
Merck argues that the report is not "signed and sworn to
by a qualified physician or other medical expert, "
(Lone Pine Order ¶ 2), because Dr. Patel has
"no discernable expertise" relating to the subject
matter of this case. Second, Merck contends that Dr. Patel
fails to state whether he "believes to a reasonable
degree of medical certainty that Fosamax caused
Plaintiff's alleged injury, and if so, the factual and
medical/scientific bases for that opinion."
(Id. ¶ 2(e).) Third, Merck argues that the
report fails to specify the date by which Dr. Patel
"believes to a reasonable degree of medical certainty
that Plaintiff first developed the injury alleged to have
been caused by Fosamax." (Id. ¶ 2(f).)
the revised report is not a picture of clarity, the Court
finds that it meets the essential requirements of the
Lone Pine order. First, based on the information
presented in the report, Dr. Patel is sufficiently qualified
for Plaintiff to rely on his opinion at this stage. According
to the revised report and attached curriculum vitae, Dr.
Patel earned a Doctor of Pharmacy degree magna cum laude from
St. Louis College of Pharmacy in 2001. (See
Curriculum Vitae at 1.) He completed an internal medicine
residency from 2001 to 2002, (id.), and currently
serves as a practicing clinical pharmacist,
pharmacologist/toxicologist, and Assistant Professor at RUSH
University Medical Center. (Report at 1.) Further, in his
report, Dr. Patel indicates that "ENT physician staff
reach out to [him] regarding the medication history,
exposure, and risk factors associated with BRONJ
[bisphosphonate-related osteonecrosis of the jaw]."
(Id.) Accordingly, the Court finds that Dr. Patel is
sufficiently qualified for his report to advance the basic
purpose of the Court's Lone Pine order-namely,
"to identify and cull potentially meritless claims and
streamline litigation in complex cases." Baker v.
Chevron USA, Inc., No. 105-CV-227, 2007 WL
315346, at *1 (S.D. Ohio Jan. 30, 2007).
the report adequately sets forth Dr. Patel's opinion that
Fosamax caused Ms. Purdy's alleged injury, as well as the
factual and medical/scientific bases for that opinion. In the
report, Dr. Patel describes the three criteria for a BRONJ
diagnosis, explains why all three criteria are met, and
concludes with his opinion "to a reasonable
pharmacologic and scientific certainty that had [sic] Ms.
Purdy developed ...