Welch et al v. Merck, Sharp & Dohme, Corp. et al
Filing
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OPINION & ORDER that Patrick Welch shall proceed as the sole plaintiff in Civil Action No. 12-3259; Ordering that the claims of all other Plaintiffs in this matter are SEVERED from the claims of Plaintiff Patrick Welch; Ordering that all severed Plaintiff's, if they chose, shall have 30 days from the date of this Order to file separate complaints containing the claims plead in the original complaint. Signed by Judge Joel A. Pisano on 8/8/2012. (eaj) Modified on 8/8/2012 (eaj, ).
NOT FOR PUBLICATION
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IN RE: FOSAMAX (ALENDRONATE SODIUM) :
PRODUCTS LIABILITY LITIGATION (NO. II)
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RELATES TO
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PATRICK WELSH, et al.,
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Plaintiffs.
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v.
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MERCK SHARPE & DOHME CORP., et al.
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Defendants.
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MDL No. 2243
(JAP-LHG)
Civil Action No. 12-03259
OPINION AND ORDER
PISANO, Judge
Plaintiffs Patrick Welch; Laura Bostick; Lana Jean Brownlee and Richard E. Brownlee,
her husband; Natalie Casalino and Charles Casalino, her husband; Carolyn L. Clark; Phyllis
Clark and Bob Clark, her husband; Mary Joeann Clutts; Jean Eseppi; Judith Hart; Lucille L.
McGowan and John McGowan, her husband; Mary K. McKinnon and Fred McKinnon, her
husband; Glenda Pace and Virgeon A. Pace, her husband; Jewell Parker and Wiley Parker, her
husband; Barbara J. Soukup and Jerry Soukup, her husband; Claudia White and Jim White, her
husband (collectively “Plaintiffs”) filed a Complaint against defendant Merck Sharpe & Dohme
Corp. (“Defendant”) and various generic manufacturers.1 This matter is raised by the Court sua
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Plaintiffs named Barr Pharmaceuticals, Inc., Barr Laboratories, Inc., Teva Pharmaceuticals
USA, Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., Mylan Inc. formerly known
as Mylan Laboratories, Inc., Mylan Pharmaceuticals, Inc., Apotex Corporation, Sun Pharma
Global, Sun Pharmaceutical Industries, Inc., and Watson Pharmaceuticals on behalf of and
formerly known as Cobalt Pharmaceuticals Company. However, these defendants—all generic
manufacturers—are dismissed pursuant to Case Management Order No. 7. (See DE 31.)
sponte, pursuant to Fed. R. Civ. P. 21, to determine whether Plaintiffs’ claims are misjoined
under Fed. R. Civ. P. 20(a).
On February 29, 2011, 91 plaintiffs from 28 different states filed a complaint in the
Circuit Court for the City of St. Louis, Missouri (hereinafter “original complaint”). (See Civil
Action No. 11-3045, DE 7.) In that case, the defendants removed the case to the United States
District Court for the Eastern District of Missouri, and the case was then transferred to this Court
by the Judicial Panel on Multidistrict Litigation for coordinated and consolidated pretrial
proceedings. The plaintiffs then filed a motion to remand the action, which the Court granted in
part and denied in part on April 3, 2012. (See Civil Action No. 11-3045, DE 153.) As part of
that ruling, the Court found that all plaintiffs’ claims were misjoined under Fed. R. Civ. P. 20(a)
and Mo. R. of Civ. P. 52.05. (See Civil Action No. 11-3045, Memorandum Opinion at 8, DE
152.) Accordingly, those plaintiffs who were diverse from the defendants were dropped and
allowed to file new complaints. (See Civil Action No. 11-3045, Order at 2.)
Several of those dropped plaintiffs filed a new action on May 1, 2012 in the Circuit Court
for the City of St. Louis, Missouri (hereinafter “new action”). (See Complaint; DE 9.) The new
action has only 24 of the original 91 plaintiffs listed in the original complaint. (Id. ¶¶ 25-39.)
The new action was removed to the Eastern District of Missouri and transferred to this Court by
the Judicial Panel on Multidistrict Litigation for coordinated and consolidated pretrial
proceedings. (See DE 1, 28.)
The new action before the Court is substantively identical to the original complaint.
Plaintiffs assert claims based upon various state law products liability theories, including, inter
alia, defective design, failure to warn, negligence, fraud, misrepresentation, breach of express
and implied warranties, and loss of consortium. (See Complaint ¶¶ 97-183.) The Plaintiffs again
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allege that Defendant concealed risks associated with, improperly promoted, and grossly
exaggerated the benefits of Fosamax, which is a drug used to treat several bone-related diseases
including osteoporosis. (Id. ¶¶ 1, 40.) Plaintiffs allege that, as a result of Defendant’s conduct,
Plaintiffs suffered “long bone” fractures, (id. ¶¶ 1, 24-39), but Plaintiffs do not identify with any
specificity which long bone or bones each individual injured. Rather Plaintiffs state that they
“have suffered and may continue to suffer severe and permanent personal injuries, including
weakened or brittle bones, multiple stress fractures, and low energy femoral fractures . . . .” (Id.
¶ 42.) Plaintiffs’ claims in the new action are identical to those found to be misjoined in the
original complaint, and consequently, the Court again addresses the issue of permissive joinder
under Fed. R. Civ. P. 20(a)(1).
In order for Plaintiffs to join their claims into a single action, the claims must (1) arise out
of “the same transaction, occurrence, or series of transactions or occurrences;” and (2) contain
“any question of law or fact common to all” plaintiffs. Fed. R. Civ. P. 20(a); see also Mo. R. of
Civ. P. 52.05.2 The purpose of permissive joinder is to “promote trial convenience and expedite
the final determination of disputes.” Mosley v. General Motors Corp., 497 F.2d 1330, 1332 (8th
Cir. 1974).
Plaintiffs each broadly allege they suffered “a long bone fracture.” But no Plaintiff
undertakes to identify which long bone they fractured, the type of fracture sustained, or how the
fracture occurred. Further, Plaintiffs do not identify the purpose for which they were prescribed
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Mo. R. of Civ. P. 52.05 provides, in relevant part: “All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or
arising out of the same transaction, occurrence or series of transactions or occurrences and if any
question of law or fact common to all of them will arise in the action.” Missouri’s permissive
joinder rule is substantively identical to Fed. R. Civ. P. 20(a). See Bowling v. Kerry, Inc., 406 F.
Supp. 2d 1057, 1061 (E.D. Mo. 2005) (citing State ex rel. Allen v. Barker, 581 S.W. 2d 818, 826
(Mo. 1979)).
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Fosamax, what dose or doses were taken, or how long Plaintiffs took Fosamax. The factual
variances among Plaintiffs here are representative of the problem with joining drug product
liability claims. “[T]oxic tort cases raise more complicated issues of causation and exposure.”
In re Rezulin Prods. Liability Litig., 168 F. Supp. 2d 136, 146 (S.D.N.Y. 2001). Consequently,
joinder of plaintiffs in a drug product liability case in no way promotes judicial efficiency or
convenience:
The plaintiffs . . . allege a defect (or defects) the precise contours
of which are unknown and which may have caused different
results—not merely different injuries—in patients depending on
such variables as exposure to the drug, the patient’s physical state
at the time of taking the drug, and a host of other known and
unknown factors that must be considered at trial with respect to
each individual plaintiff. They do not allege that they received [the
drug] from the same source or that they were exposed to [the drug]
for similar periods of time . . . [T]hey do not allege injuries specific
to each of them so as to allow the Court to determine how many
plaintiffs, if any, share injuries in common.
Id. Likewise, in their new action, the 24 Plaintiffs claim injuries in exceedingly vague terms so
as to make it impossible for the Court to determine whether or how the Plaintiffs share any
connection. Moreover, Plaintiffs’ claims involve complicated questions of causation and will
thus involve diverging questions of law and fact. Therefore,
IT IS THIS 8th day of August 2012; hereby
ORDERED that Plaintiff Patrick Welch shall proceed as the sole plaintiff in Civil Action
No. 12-03259; and it is further
ORDERED that the claims of Plaintiffs Laura Bostick; Lana Jean Brownlee and Richard
E. Brownlee, her husband; Natalie Casalino and Charles Casalino, her husband; Carolyn L.
Clark; Phyllis Clark and Bob Clark, her husband; Mary Joeann Clutts; Jean Eseppi; Judith Hart;
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Lucille L. McGowan and John McGowan, her husband; Mary K. McKinnon and Fred
McKinnon, her husband; Glenda Pace and Virgeon A. Pace, her husband; Jewell Parker and
Wiley Parker, her husband; Barbara J. Soukup and Jerry Soukup, her husband; Claudia White
and Jim White, her husband are SEVERED from the claims of Plaintiff Patrick Welch; and it is
further
ORDERED that all severed Plaintiffs, if they so choose, shall have thirty (30) days from
the date of this Order to file separate complaints containing the claims plead in the original
complaint; and it is further
ORDERED that upon filing separate complaints, if filed in federal court, Plaintiffs’
counsel shall notify the Judicial Panel on Multidistrict Litigation that the new civil action is a
potential tag-along action; and it is further
ORDERED that severed Plaintiffs are deemed to have ongoing actions in MDL No. 2243
currently before this Court during the time between the date of this Order and the filing, pursuant
to this Order, of separate complaints and while their actions are in the process of being
transferred to this Court as tag-along actions; and during this time period, severed Plaintiffs
continue to be under the obligation of all Case Management Orders issued by this Court; and it is
further
ORDERED that for the purposes of the applicable statutes of limitation, or other time bar
laws, the filing of separate complaints pursuant to this Order shall be deemed to relate back to
the filing date of Plaintiffs’ original complaint (February 28, 2011) in so far as the newly filed
complaints alleged the same claims as alleged in the original complaint.
/s/ JOEL A. PISANO
United States District Judge
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