govinfo:USCOURTS-njd-1_08-cv-00008-3

NOT FOR PUBLICATION 
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IN RE: FOSAMAX (ALENDRONATE SODIUM) : MDL No. 2243 
PRODUCTS LIABILITY LITIGATION (NO. II) : (JAP-LHG) 
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RELATES TO : 
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PATRICK WELSH, et al., : Civil Action No. 12-03259 
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 Plaintiffs. : OPINION AND ORDER 
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MERCK SHARPE & DOHME CORP., et al. : 
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 Defendants. : 
 
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PISANO, Judge 
 Plaintiffs Patrick Welch; Laura Bostick; La na 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 
                                                            
1 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.) PageID:
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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 di fferent 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 plai ntiffs 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 substantiv ely 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 PageID:
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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 suffere d “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 
                                                            
2 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)). PageID:
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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 Patric k Welch shall proceed as the sole plaintiff in Civil Action 
No. 12-03259; and it is further 
 ORDERED that the claims of Plaintiffs Laur a 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; PageID:
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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 Plain tiffs, 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 separa te 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 Plaint iffs 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 appli cable 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 / J O E L A . P I S A N O 
 United States District Judge PageID:
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