In re: Fosamax Products Liability Litigation

U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Civil Practice

New York Law Journal

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Judge John Keenan

Nancy Naydeck, a 75-year old resident of Savannah, Georgia, took Fosamax between 1998 and 2009. In October 2008, Naydeck suffered a spontaneous fracture of her left femur, but averred that she did not know, and was not told, the cause of the fracture. In her original complaint, Naydeck alleged that she developed osteonecrosis of the jaw (ONJ) as a result of using Fosamax. Subsequently, Naydeck filed her Plaintiff Profile Form, which included the assertion that Fosamax caused both her ONJ and her femur fracture, but she did not change her complaint. Naydeck is now seeking to amend her complaint to add the allegation that she suffered a femur fracture as a result of using Fosamax. The court granted the motion finding that Naydeck's allegation "arose out of" the misconduct Naydeck alleged in her original complaint. The court concluded that because of the relationship between Naydeck's femur fracture allegation and the allegations in her original complaint, defendant had fair notice of the newly alleged claims by virtue of the original complaint. The court also found that defendant could not establish that it would be prejudiced by the addition of the femur fracture allegation, since the claim would likely be severed and transferred.

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