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In Re: Fosamax Products Liability Litigation v. Merck & Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


August 30, 2011

IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION
SECREST
v.
MERCK & CO., INC.,

The opinion of the court was delivered by: John F. Keenan, United States District Judge:

This document relates to:

MEMORANDUM OPINION AND ORDER

This is one of over 900 cases consolidated before this Court for coordinated pretrial proceeding in the In re Fosamamx Products Liability Litigation multidistrict litigation. This case is set for trial on September 7, 2011, and today the Court heard oral argument and issued rulings on the parties' in limine motions.*fn1 The Court reserved decision on plaintiff Linda Secrest's ("Secrest") motion to preclude defendant Merck Sharp & Dohme Corp. ("Merck") from introducing testimony or evidence about disciplinary proceedings against Dr. Steven Alexander conducted by the Florida Department of Health.

Dr. Alexander was Secrest's dentist and performed a number of procedures on her prior to 2002. As a result of his treatment of Secrest, an administrative complaint was filed against Dr. Alexander with the Florida Department of Health.

Dr. Alexander settled this complaint with the Florida Department of Health and in doing so, admitted certain allegations regarding the manner in which he treated Secrest.

In this case, Secrest contends that she developed osteonecrosis of the jaw in June 2004 as a result of her use of Fosamax. Merck contends that Secrest's injuries are attributable to her chronic history of infections rather than her use of Fosamax, and intends to introduce opinion testimony from Dr. Norman Betts in support of its theory that Dr. Alexander's treatment caused Secrest to experience an infection that led to her injuries. In Merck's view, Dr. Betts based his expert opinion in part on factual admissions made by Dr. Alexander in his settlement with the Florida Department of Health.

Plaintiff argues that the statements are inadmissible hearsay and that informing the jury about the disciplinary proceeding would be unfairly prejudicial while having little probative value. Fed. R. Evid. 403, 802.

The Court grants this motion in part and denies it in part. These statements are admissible despite the Hearsay Rule because Dr. Betts has based his opinion testimony on these admissions, and because medical experts often rely on statements made by treating physicians about a course of treatment. Fed. R. Evid. 703. The admission of this evidence will not be unfairly prejudicial because the Court issues the following limiting instruction: Merck may not refer to the Florida Proceedings as disciplinary in nature but may introduce factual admissions made by Dr. Alexander in his settlement with the Department of Health that form the basis of Dr. Norman's opinion on the causation of Secrest's alleged injuries. (See Df. 's Mem. Opp. PI. 's Mots. in Limine 7-8, ECF No. 204.) Merck may not refer to the fact that these statements were made in a disciplinary proceeding or to whether Dr. Alexander was determined to have failed to meet "prevail ing peer performance standards." (Pl.' s Mem. Supp. pI . 's Mots. in Limine 14, ECF No. 195.) Both parties are directed to refer to the Dr. Alexander's statements--if at all--simply as "statements made in another proceeding in Florida."

SO ORDERED.

New York

United States District Judge


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