Second Circuit Rejects Bid to Include Expert Testimony in Fosamax Injury Case – In re Fosamax Products Liability Litigation

By February 7, 2013July 18th, 2019Dangerous Drugs

I’ve written here before as a pharmaceutical liability lawyer about the frightening side effects of the drug Fosamax (alendronate sodium). Fosamax is intended to treat osteoarthritis, but among its side effects is osteonecrosis of the jaw—which means the jawbone literally dies, creating painful and potentially disfiguring or infection-causing mouth lesions. In In re Fosamax Products Liability Litigation, Linda Secrest sued the drug’s manufacturer, Merck, for failing to adequately warn her about this risk. The New York federal court dismissed her case after excluding testimony from her treating doctor, without which the case couldn’t go forward. The Second U.S. Circuit Court of Appeals upheld this decision, finding no error under the circumstances.
The lawsuit by Secrest claimed that Merck should have known about the osteonecrosis risk as early as 1995, when dental infection reports came in during clinical trials of Fosamax. Merck acknowledged that the first express report of osteonecrosis appeared in 2003, but the first warning was not distributed until 2005. Secrest took Fosamax on a doctor’s recommendation from 1998 to 2005, when another doctor recommended discontinuing because of her osteonecrosis. Her history of dental injuries dates to 1999, but she developed a chronic jaw infection in 2004 that was diagnosed as osteonecrosis. It cleared up several months after she stopped taking Fosamax.
Secrest filed a federal lawsuit that was eventually consolidated in New York, then chosen as a bellwether case. Her expert testimony came from her first treating doctor, Epstein, who was deposed as a fact witness before Merck filed for summary judgment and again just after the motion, as an expert. The two depositions contained apparent contradictions, and the district court rejected the second deposition, finding it speculative and in some ways untrue. Without this admissible evidence, it said, Secrest had no case. It granted summary judgment to Merck.
The Second Circuit upheld that decision, finding that Epstein’s testimony was inadmissible and that without it, there was no genuine issue of material fact. To prevail on a failure to warn claim in Secrest’s home state of Florida, plaintiffs must show, among other things, that a treating doctor would have recommended ending a drug if a different warning had existed. Secrest cannot make this case, the Second said, because Epstein’s two depositions contradicted each other about whether he knew she was taking Fosamax. The district court is entitled to disregard the second deposition, the court said, under the “sham issue of fact” doctrine that prevents plaintiffs from defeating summary judgment by submitting contradictory testimony that “manufactures” a factual dispute. This applies to experts as well as parties, the court said, and nothing was proffered to explain the inconsistencies. Thus, it upheld the district court.
As a dangerous drug attorney, I’m disappointed that Secrest will not get her day in court. The underlying merit of her claim that Fosamax caused her injuries was not decided here. Rather, the problem was that she chose an expert who couldn’t testify to personal knowledge of her drug regime during the relevant time. The doctor who was treating her at the time would certainly have been able to so testify, and records show that she was taking it—so there’s no genuine dispute about whether she took the drug. But the testimony problem was enough to get the case dismissed on a technicality. Drug company attorneys are paid very well to poke holes like this in a product liability case, which is why it’s absolutely vital to have an experienced defective drug lawyer by your side when you plan this kind of case.


If you believe a prescription drug caused an injury, illness or death in your family, you may be able to recover damages from the drug company that failed to adequately warn you. To learn more or set up a free consultation, call Carey, Danis & Lowe today at 1-877-678-3400 or send us a message online.
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