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In Re: Fosamax Products Liability Litigation v. Merck

January 30, 2013


Per curiam.


Secrest v. Merck, Sharp & Dohme Corp.

Argued: January 8, 2013

Before: KATZMANN, LOHIER, Circuit Judges, and RAKOFF, District Judge.*fn1

In this products liability action, Linda Secrest appeals from a judgment of the United States District Court for the Southern District of New York (Keenan, J.) granting summary judgment on Secrest's claim that Merck, Sharp & Dohme Corp. failed to issue adequate warnings regarding the risks associated with using Fosamax, a prescription drug. Secrest contends that the District Court erroneously discredited expert testimony from one of her treating physicians that (1) unequivocally and inexplicably contradicted the physician's prior deposition testimony, (2) was central to the failure to warn claim, and (3) followed the filing of Merck's summary judgment motion. Under these circumstances, the District Court's decision to discredit the later testimony was not error. We AFFIRM.

Linda Secrest appeals from a judgment of the United States District Court for the Southern District of New York (Keenan, J.) granting summary judgment in favor of Merck, Sharpe & Dohme Corp. ("Merck") and dismissing her products liability claim for failure to provide an adequate warning regarding the risks associated with Fosamax, a prescription drug. In this appeal we consider whether the District Court erred in granting Merck's summary judgment motion after discrediting expert testimony from Secrest's treating physician. Because the physician's expert testimony contained contradictions that were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to Secrest's failure-to-warn claim, we hold that the District Court did not err in determining that there was no genuine dispute of material fact raised by the later testimony. Accordingly, we AFFIRM the judgment of the District Court.*fn2


Fosamax is a prescription drug manufactured by Merck that falls within a class of drugs known as bisphosphonates, which are commonly used to treat bone conditions such as osteoporosis. Fosamax has allegedly been linked to osteonecrosis―bone death―of the jaw ("ONJ"), a condition characterized by areas of dead jaw bone that become exposed to the oral cavity.

Secrest claimed that Merck should have known of a possible link between Fosamax and ONJ as early as 1995, when it received reports about patients who had developed "dental pain" or "dental infection" during clinical trials of the drug. While disputing that these reports put it on notice of such a link, Merck acknowledged that it received a report explicitly stating that a Fosamax patient had developed ONJ in October 2003, and that it received more reports of ONJ in Fosamax patients in 2004. In January 2005 Merck received a letter from the Food and Drug Administration (the "FDA") requesting that Merck state in the Fosamax label that ONJ had been reported in patients taking bisphosphonates. In July 2005 Merck and the FDA agreed that Merck would include the following warning in the Fosamax label: "Osteonecrosis of the jaw . . . has been reported in patients taking bisphosphonates. . . . Known risk factors for osteonecrosis include . . . co-morbid disorders (e.g., pre-existing dental disease, anemia, . . . infection)." That warning was first posted on Merck's website and distributed to physicians in August 2005. Secrest, a resident of Florida, began taking Fosamax in 1998 when her long-time primary-care physician, Dr. Lawrence Epstein, prescribed the drug to prevent fractures and osteoporosis. Dr. Epstein prescribed Fosamax between June 1998 and March 2003.*fn3 Starting in December 2003, Secrest's new doctor, Dr. Dennis Hidlebaugh, prescribed Fosamax for her. Secrest has a history of dental injuries dating back to at least 1999. When a serious and chronic infection "in and around [her] jaw" developed in March 2004, Secrest was referred to Dr. Robert E. Marx, who diagnosed her condition as ONJ. Following Dr. Marx's recommendation, Secrest stopped taking Fosamax in April 2005, and her ONJ is alleged to have healed by August 2005.

Although Secrest started this action in federal court in Florida, in August 2006 the case was transferred to the Southern District of New York by the Judicial Panel on Multidistrict Litigation for pretrial proceedings as part of the consolidation of all federal cases involving allegations that ingestion of Fosamax had caused ONJ. See In re Fosamax Prods. Liab. Litig., 444 F. Supp. 2d 1347, 1349-50 (J.P.M.L. 2006). The case, in which Secrest asserted, among other things, product liability claims for failure to warn and design defect, was then selected to proceed to trial as one of several "bellwether" cases.

In January 2011, before trial, Merck moved for summary judgment on all of Secrest's claims. In response, Secrest offered no evidence from Dr. Hidlebaugh, who had been prescribing her Fosamax when she first developed ONJ. Secrest offered instead the "expert" testimony of Dr. Epstein, who, she claimed, had continued to consult with her about Fosamax. Dr. Epstein was deposed twice - in August 2008, well prior to Merck's summary judgment motion, and in February 2011, just after Merck's motion was filed. Dr. Epstein was originally deposed as a fact witness. After Merck moved for summary judgment, Secrest designated him as an expert, and he was accordingly re-deposed.

During the first deposition in 2008, Dr. Epstein admitted that he "was not aware" in 2004 and 2005, when Secrest developed ONJ, "that she was continuing on the Fosamax" or that Dr. Hidlebaugh had continued to prescribe her Fosamax "for two years more than what [he] suggested," and he also admitted that he "did not know that she was on Fosamax from 2003 to 2005 because [he] had wanted her on [a different drug]." By contrast, in his February 2011 deposition, Dr. Epstein testified that he "knew she was on [Fosamax]" in 2004 and 2005 and that, had Merck warned him about the risk of ONJ, he would have recommended that Secrest stop taking Fosamax. More specifically, Dr. Epstein testified that, beginning in 2003, he was "assisted by [Dr. Hidlebaugh] who was taking over [his] prescribing habits." He explained that he spoke with Dr. Hidlebaugh and "advised him to continue [his] treatment before [he] knew any of the ill effects of this drug," adding that "[a]ll I can tell you is that Dr. Hidlebaugh and I talked and that he agreed to assume her care and follow my care plan." Dr. Epstein further testified that he "knew [Secrest] was on [Fosamax]" based on her "prescription fills." Only after he was designated as Secrest's expert did Dr. Epstein remember speaking to Dr. Hidlebaugh. After reviewing Dr. Epstein's testimony from both depositions, the District Court held that there was no admissible evidence of a causal connection between Merck's failure to warn about ONJ in 2004 and 2005 and Secrest's ONJ, as Dr. Epstein's new testimony that he knew that she took Fosamax during that period was not based on personal knowledge. So far as we can tell the District Court appears to have rejected Dr. Epstein's new testimony for two related reasons. First, viewing Dr. Epstein's testimony as resting on little more than an "assum[ption]" that Secrest was taking Fosamax at the relevant time, the District Court rejected as "purely speculative" Dr. Epstein's assertion that he would have warned Secrest to stop taking Fosamax if Merck had included a different warning. Second, it pointed to Dr. Epstein's admission that he "knew" about Secrest's Fosamax use in 2004 and 2005 based on a recent review of Secrest's prescription records, rather than personal knowledge obtained during the relevant period. This appeal followed.*fn4


We review the District Court's grant of summary judgment de novo, "applying the same standards applied by the district court." Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011). "Summary judgment may be granted only if 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(a)). In ruling on a motion for summary judgment, a district court "may rely on any material that would be admissible at a trial." Lyons v. Lancer Ins. Co., 681 F.3d 50, 57 (2d Cir. 2012) (quotation marks omitted); see also Call Ctr. Techs., Inc. v. Grand Adventures Tour & Travel Publ'g Corp., 635 F.3d 48, 52 (2d Cir. 2011) ("[T]he non-moving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial . ...

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