A very recent decision from the Fosamax litigation illustrates a causation principle that’s essential to keeping warning claims from spinning totally out of control. That principle is that there’s no claim for inadequate warnings except as to the risk that the plaintiff is suing over. Seems sort of basic, but every so often a case comes along that reminds us why this principle is important.

In Boles v. Merck & Co., 1:06-MD-1789-JFK, slip op. (S.D.N.Y. March 26, 2010), the court had earlier denied summary judgment on learned intermediary warning causation (i.e., that a different warning would have resulted in the prescriber not prescribing the drug) where plaintiff obtained an affidavit from the prescriber that he had not been warned of the relevant risk (osteonecrosis of the jaw, or “ONJ”), and that this may have affected his prescribing decision. See In re Fosamax Products Liability Litigation, 647 F. Supp. 2d 265, 282 (S.D.N.Y. 2009).

Anyway, now fast-forward to trial.  In a stark reminder not to trust the affidavits that plaintiffs’ counsel stick under the noses of prescribing physicians – the good doctor’s actual testimony diverged significantly from what was in that affidavit. Boles, slip op. at 10-11. The jury hung, and the court revisited the significance of the prescriber’s causation testimony in the context of a Rule 50 motion for judgment as a matter of law.


Continue Reading Warning Causation – Risky Business

We’ve previously argued that courts should eliminate class action tolling of the statute of limitations in the mass tort context. In a nutshell, we see the rule first announced in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) – allowing for tolling of the statute of limitations for all members of

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

Something old: Last week, a federal judge in New York declared a mistrial after a jury deadlocked over whether Merck’s drug Fosamax was responsible for causing a 71-year-old woman’s osteonecrosis of the jaw. Here’s a link to a Bloomberg report, although that result was widely covered in both the popular and legal press.

Something

Bexis’ firm represents Merck, so he was not involved in drafting this post. Pin the blame for what follows exclusively on Herrmann:

We were so busy ranting yesterday about that article on spine surgery in The New York Times that we nearly overlooked this little ditty from The Wall Street Journal. It reports that the

While Bexis was somewhere hiking on glaciers in New Zealand, the court in the Fosamax MDL litigation did an entirely expected thing – it denied class certification. As we’ve posted before, in virtually every prescription drug MDL somebody seeks to certify a class, and with almost as great regularity, that motion is denied. One