Yesterday we mentioned that Merck had won summary judgment in a consumer protection-type suit brought by the Texas Attorney General concerning Vioxx. We hoped for an “interesting opinion.” Well, check that. We’ve now seen the order – and that’s all there is (at least for now) – an order. Here it is, but it doesn’t say much beyond the relief granted.

We couldn’t have done much with it any way, given Bexis’ involvement in (other) Vioxx litigation, so lets move on to something more interesting.

Yesterday was a good day for Merck (unlike … umm … well, just insert an appropriate W.C. Fields reference). The company also won summary judgment in another test case in the Fosamax MDL in New York federal court (If you can make it there, you can make it anywhere). Here’s a copy of that opinion – which actually is interesting.

The first thing we have to say, just reading the facts, is where do they get these plaintiffs? If this is a test case, we’d hate to see (actually as defense lawyers, we’d love to see), the cases that even the plaintiffs think are weak. This plaintiff – old, disabled from what the opinion describes as smoking-related lung disease, skin cancer and abscesses in the mouth area, severe osteoporosis, and most importantly for a Fosamax case – a lifetime of miserable dental hygiene. Slip op. at 3-4. On top of that, this plaintiff didn’t even have a permanent injury, but rather healed up after she finally got dental care (or after stopping the drug, which is one of the issues the opinion addresses). Id.

In short, a wonderful combination of weak liability and low damages. But that’s modern mass tort practice, for you.

This plaintiff was treated by two dentists. Neither of the treaters was willing to offer much of an opinion that the injury (which we will assume, for purposes of this post, was osteonecrosis – what the Fosamax litigation is mostly about) was caused by the plaintiff’s use of Fosamax. Slip op. at 4-7.

The case is under Mississippi law (you know what I mean! – sorry, that’s the best we could do for a Mississippi reference off the top of our heads). Plaintiff gives up on three of her four causes of action (design defect, manufacturing defect, negligence per se) right out of the box – and this is a test case – so we’re left with a warning claim. Slip op. at 9.

But it wouldn’t really have mattered what theory the plaintiff pursued, because she couldn’t prove causation. Those treating doctor’s “opinions” were all plaintiff had to offer on whether Fosamax caused her an injury. Trouble was, one treater didn’t have any opinion at all. See Slip op. at 13 (“Plaintiff cannot establish specific causation through the opinion of [the first treater] because, in short, he does not have an opinion”).


The other treater admitted that he didn’t know squat about Fosamax. Slip op. at 16 (the second treater “instead repeatedly qualified his diagnosis by admitting that ‘he knows little’ regarding the topic”). His methodology, if it can be called that (the court expressed doubts) “reveals no other reasoning for his diagnosis other than the temporal relationship” and vague rumors (“a little hum”) in the medical community. Slip op. at 19.

Double fault. And this is an MDL test case? We have to wonder what exactly is being tested.

So this test plaintiff loses because, with all the resources of a big-deal MDL behind her, she can’t come up with an expert witness on causation other than these two treaters, one without any opinion and the other unfamiliar with the drug and incapable of even performing a differential diagnosis:

It is undisputed that [plaintiff] has smoked since childhood and has poor dental hygiene. . . . [A]t his deposition, [the second treater] did not rule out or otherwise address other possible causes for the injury to Plaintiff’s jaw, such as trauma or infection. In fact, he suggested a plausible alternative explanation for [Plaintiff’s] injury: “[I]t could have healed up, I guess, either from stopping the Fosamax or it could have healed up on its own if it was just an — just a horrible looking abscess.”

Slip op. at 20. And the coup de grâce: this supposed “expert” “when pressed at his deposition regarding his opinion, stated that he ‘could not say’ whether Fosamax was a cause or contributing factor of Plaintiff’s injury.” Id. at 22.

At the risk of repeating ourselves – this is an MDL test case? Unless the defendant got to pick this case (and defense picks, when permitted, usually end up being voluntarily dismissed by the plaintiffs), we have to doubt (yeah, we’re defense counsel, that’s what we do) whether there’s any “there there” (apologies to Oakland) in the Fosamax MDL.

And congrats to Merck and its lawyers for yesterday’s one-two punch.