Fosamax Lawsuit Update: Supreme Court Refuses to Review Defense Win

fosamax packagingEarlier this month, the United States Supreme Court declined a decision by the Second Circuit in reaffirming a defense verdict in the Fosamax lawsuit. The Fosamax lawsuit provided a rare evidentiary issue in the world of law.

Some of you may recall that a jury in the Southern District of New York released a defence verdict for the Merck party in 2011 of October. One of the key issues regarding evidence was the trial court’s decision to exclude one of the expert witnesses due to some “sham issue of fact” doctrine. Dr. Epstein, the Expert Witness was initially designated as a fact witness was removed.

After the Merck party moved their summary judgement, Dr. Epstein was then regarded as an expert, but then removed and was forced to change his testimony. The second time the witness was to testify, the plaintiff ingested the Fosamax drug in the years of 2004 and 2005, but instead Dr. Epstein claimed that he did not know anything about the plaintiff’s usage of Fosamax.

Because of the unequivocal and inescapable contradictions and inconsistencies of Dr. Epstein’s Testimony, it was quite clear that the decision of the District Court did not make a mistake in not siding with the plaintiff’s case. Take note that the United States Supreme Court did not entertain the plaintiff’s appeal.

The District Court was also entitled to disregard Dr. Epstein’s new testimony due to the basis on the “sham issue of fact” Doctrine. Basis on this doctrine prohibits a party from defeating a summary judgment; in fact submission of an affidavit can contradict a party’s previous sworn testimony. Although Courts are more likely to apply the “sham issue of fact doctrine” if any party would deliver a testimony that contains a defeating summary judgment.

In this case the Second Circuit applied to stop Secrest from further building up a factual dispute through submission of a testimony. This also affects the expert in which the party has altered, an expert who after all did deliver inconsistent data.

There was also an instance of a relevant contradiction yet, this relevant contradiction was left unexplained. It was rather clear to the court that the plaintiff had created a sham issue of fact. Because of the relevant contradictions in Dr. Epstein’s testimony,

Secrest’s failure to warn claim was affected by the Sham issue of fact doctrine. Because of the faulty testimony, the jury could not find any evidence where Dr. Epstein would have recommended the plaintiff to cease taking Fosamax.


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