Secrest v. Merck, Sharp & Dohme Corp.
2013 U.S. App. LEXIS 2125
| 2d Cir. | 2013Background
- Secrest appeals district court summary judgment for Merck on failure-to-warn regarding Fosamax and ONJ.
- Treating physician Dr. Epstein provided conflicting deposition testimony in 2008 and 2011 after Merck’s motion.
- Florida law requires warning to be addressed to physicians, with causation showing physician would stop drug if warned sufficiently.
- Merck issued a 2005 warning; Secrest used Epstein’s later testimony to oppose summary judgment.
- District Court deemed Epstein’s February 2011 testimony to be a sham or manufactured contradiction.
- Court held no genuine dispute of material fact remained and affirmed judgment for Merck.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in discarding Epstein's later testimony as a sham. | Secrest argues contradictions are genuine and create fact disputes. | Merck argues later testimony is sham since it contradicts prior sworn statements and lacks personal knowledge. | No genuine dispute; court properly discarded sham testimony. |
| Whether Florida causation requires physician would stop Fosamax given a different warning. | Secrest must show physician would have ceased treatment with adequate warning. | Merck contends different warning would have changed physician action; causation exists if warning would have changed care. | Causation is not established without physician's independent knowledge; no fact dispute. |
| Whether timing of the new expert testimony post-motion affects the ability to defeat summary judgment. | Late-stage testimony can create a genuine issue of material fact. | Post-motion testimony crafted to defeat summary judgment is suspect and permissible only if credible. | Timing supports finding no genuine dispute; new testimony lacks credibility. |
Key Cases Cited
- Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969) (sham affidavit/contradictory testimony may defeat summary judgment)
- AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699 (2d Cir. 2010) (timing and contradictions in expert testimony to defeat summary judgment)
- Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) (plausible explanations for inconsistencies; credibility issues for jury)
- Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011) (inescapable contradictions support not considering inconsistent testimony)
- Cutter Laboratories v. Cutter, 53 F.3d 1187 (2d Cir. 1995) (causation under Florida law; physician would stop if warning adequate)
- Upjohn Co. v. MacMurdo, 562 So.2d 680 (Fla. 1990) (duty to warn directed to physician)