Purdy et al v. Merck, Sharp & Dohme, Corp.,

Filing 36

MEMORANDUM OPINION & ORDER re: 26 MOTION Lone Pine Order filed by Merck sharp & dohme corp. Accordingly, Merck's motion to dismiss for failure to comply with the Court's April 4, 2016 Lone Pine order is denied. The parties are directed to appear for a pretrial conference on February 7, 2017, at 2:45 P.M. (Pretrial Conference set for 2/7/2017 at 02:45 PM before Judge John F. Keenan.) (Signed by Judge John F. Keenan on 1/25/2017) (cla)

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DOCUl\1ENT
ELECTR01\;1CALLY FILED .
DOC#:
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-- ------ ----- ------- ----- -----~- ---X
RONALD PURDY, as personal representative
of Sherry Purdy,
Plaintiff,

14 Civ. 3017

MEMORANDUM OPINION &
ORDER

-against
MERCK & CO.,

(JFK)

INC.
Defendant.

-------X
JOHN F. KEENAN, United States District Judge:
Plaintiff 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.
On 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;
1

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)
Fosamax to the Plaintiff;

who prescribed

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.
On June 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.

2

On

June 8, 2016, Plaintiff's counsel produced the signed and
notarized version.
On June 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 de

ciencies and that

Plaintiff's complaint should be dismissed with prejudice.
Plaintiff responded with another letter on July 15, 2016.
In seeking dismissal, Merck points to three

leged

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. Pat

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
3

---~------------~-------------------

which Dr. Patel "bel

s to a reasonable degree of medical

certainty that Plaintiff first developed the injury alleged to
have been caused by Fosamax."

Id. t 2(f) .)

While 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 present

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.)

internal medicine residency from 2 0 01 to 2002,
currently serves as a practicing clini

He completed an
( id. ) , and

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

sk

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,
4

Inc., No. 105-CV-227, 2007 WL 315346, at *1 (S.D. Ohio Jan. 30,
2007) .
Second, 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
bisphosphonate-related osteonecrosis of the jaw (BRONJ)
secondary to exposure of alendronate (Fosamax) ." (Report at 2.)
Finally, the report sufficiently identifies the date by
which Ms. Purdy developed her alleged injuries.

Or. Patel

states that the diagnosis of BRONJ was made by Ms. Purdy's oral
surgeon in July 2013 at the Northwest Oral and Maxillofacial
Surgery Center, and that records from that center "confirm the
diagnosis of BRONJ." (Id.)

The Court therefore understands Dr.

Patel to opine that Ms. Purdy developed her alleged injuries by
no later than July 2013.
Accordingly, Merck's motion to dismiss for failure to
comply with the Court's April 4, 2016 Lone Pine order is denied.

5

The parties are directed to appear for a pretrial conference on
February 7, 2017, at 2:45 P.M.
SO ORDERED.

Dated:

New York, New York
January2~' 2017

~7:~
HOD.

J2hn F. Keenan
United States District Judge

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