In re: Fosamax — civil — reversal — Fuentes

Plaintiffs alleged that an osteoporosis drug sold by Merck caused thigh-bone fractures. Merck sought summary judgment, arguing that the plaintiffs’ product-liability claims were preempted because the FDA would not have approved the warning the plaintiffs tendered. Today, the Third Circuit vacated, emphasizing that the predictive preemption defense at issue is “demanding” and that the plaintiffs’ evidence was enough to defeat summary judgment.

Of particular note is this paragraph near the end of the opinion:

There is a deeper problem lurking in the District Court’s decision to grant Merck a merits judgment in all of the MDL cases. A mass tort MDL is not a class action. It is a collection of separate lawsuits that are coordinated for pretrial proceedings—and only pretrial proceedings—before being remanded to their respective transferor courts.170 Some purely legal issues may apply in every case. But merits questions that are predicated on the existence or nonexistence of historical facts unique to each Plaintiff—e.g., whether a particular Plaintiff’s doctor would have read a warning in the Adverse Reactions section and ceased prescribing Fosamax as a result—generally are not amenable to across-the-board resolution. Each Plaintiff deserves the opportunity to develop those sort of facts separately, and the District Court’s understandable desire to streamline proceedings cannot override the Plaintiffs’ basic trial rights.171 As a technical matter, Merck’s actual burden at the summary judgment stage was to prove that there is no genuine dispute in every single MDL case that Plaintiffs’ doctors would have continued to prescribe Fosamax even if the fracture warning had been added to the Adverse Reactions section before May 2009. It could not do so, and the District Court’s grant of summary judgment on the merits was therefore erroneous.

Joining Fuentes were Chagares and Restrepo. The opinion ran 78 pages with 172 footnotes. Superstar arguing counsel were former Assistant to the Solicitor General David Frederick of Kellogg Hansen for the plaintiffs and John Beisner of Skadden Arps for Merck. Audio of the oral argument is here.