IN RE FOSAMAX PRODUCTS LIABILITY LITIGATION
In re: FOSAMAX PRODUCTS LIABILITY LITIGATION.
LINDA SECREST, Plaintiff-Appellant,
MERCK, SHARP & DOHME CORP., Defendant-Appellee.
United States Court of Appeals, Second Circuit.
January 30, 2013.
TIMOTHY M. O'BRIEN, Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, FL., for Plaintiff-Appellant.
ANDREW GOLDMAN, Goldman Ismail Tomaselli Brennan & Baum LLP, (Theodore V.H. Mayer, William Joseph Beausoleil, Hughes Hubbard & Reed LLP, New York, NY; Paul F. Strain, Venable LLP, Baltimore, MD, on the brief), for Defendant-Appellee.
Present: ROBERT A. KATZMANN, RAYMOND J. LOHIER, JR., Circuit Judges, JED S. RAKOFF, District Judge.*
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District Court is AFFIRMED.
Plaintiff-Appellant Linda Secrest appeals from an October 5, 2011 judgment of the United States District Court for the Southern District of New York, following a jury verdict for Defendant-Appellee Merck, Sharpe & Dohme Corp. on her design defect claims. Secrest alleges that she suffered osteonecrosis—bone death—of the jaw ("ONJ") as a result of taking Merck's prescription osteoporosis drug, Fosamax. On appeal, Secrest contends that: (1) the District Court erred in granting Merck summary judgment on her failure-to-warn claim; (2) the District Court's jury instructions did not accurately reflect Florida products liability law, the governing substantive law in this diversity case; (3) the District Court erred in limiting the evidence presented at trial from two of her treating physicians; and (4) the District Court erred in admitting evidence of her prior lawsuit and settlement with her dentist. We decide the latter three issues of the appeal in this summary order, and we address Secrest's appeal with respect to the first issue in a per curiam opinion filed simultaneously with this summary order. We assume the parties' familiarity with the facts and record of the prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Jury Instructions
"When a party challenges a court's jury charge, this Court reviews the jury instructions de novo and as a whole." Boyce v. Soundview Tech. Grp., Inc., 464 F.3d 376, 390 (2d Cir. 2006). "A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law." Id. (quotation marks omitted). An erroneous instruction requires a new trial unless the error is harmless, i.e., "it is clear that it did not influence the jury's verdict." Id. Secrest argues that the District Court's jury instructions were flawed in three ways: (1) the charge incorrectly described Florida law on the standard for defective design; (2) the District Court erred in instructing the jury regarding Florida's "government rules defense"; and (3) the charge should have instructed the jury on its ability to apportion damages when an injury results in aggravation of a preexisting physical defect. The District Court charged the jury appropriately with respect to the standard for a defective design. First, even assuming that Secrest is correct that Florida continues to adhere to the approach reflected in the Restatement (Second) of Torts to determine whether a prescription drug is defectively designed, see In re Standard Jury Instructions in Civil Cases — Report No. 09-10, 91 So.3d 785, 789 (Fla. 2012) (Pariente, J., concurring), the District Court did not, as Secrest contends, charge the jury according to the approach in the Restatement (Third) of Torts. The Third Restatement states that a prescription drug is defectively designed only if a physician "would not prescribe the drug or medical device for any class of patients." RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 6(c) (1998) (emphasis added); see In re Fosamax Prods. Liab. Litig., No. 06 MD 1789, 2011 WL 2566074, at *7 (S.D.N.Y. June 29, 2011) (noting that the Third Restatement "presents a narrower scope of tort liability for prescription drug manufacturers than the objective standard urged by Merck . . . [because it] would permit a drug manufacturer to avoid liability on a defective-design claim even if the overall risks of a drug outweigh the benefits of that drug, so long as there is some class of patients for whom the benefits outweigh the risks"). By contrast, here, the District Court directed the jury to consider Fosamax's "overall risks and benefits to the public as a whole." J.A. 1946 (emphasis added). More importantly, the District Court did not err in employing an "objective" standard that asked the jury to consider the risks and benefits of Fosamax to the public as a whole, as opposed to directing the jury to consider the drug from the perspective of either a particular user or a sub-category of users. Federal and state courts in Florida have employed an "objective" standard for the risk-benefit test. See, e.g., Jennings v. BIC Corp., 181 F.3d 1250, 1255 (11th Cir. 1999) (applying Florida law and concluding that "defectiveness of a design is determined based on an objective standard, not from the viewpoint of any specific user"); Liggett Grp., Inc. v. Davis, 973 So.2d 467, 475 (Fla. Dist. Ct. App. 2007) (same). Moreover, Secrest has not cited a single decision applying Florida law (nor can we find any) that has rejected an objective standard or limited the jury's consideration in the way she suggests.1