In a blow to all Fosamax plaintiffs, but one in particular, the 2nd Circuit Court of Appeals upheld a defense verdict for Merck on Wednesday, finding no errors in the lower court’s rulings.
At particular issue was the trial court’s exclusion of plaintff’s key experts. The 2nd Circuit said that one of the experts offered irrelevant testimony that was properly excluded, and that the trial court correctly ruled that the expert could not give testimony about the competency of the FDA because the expert lacked the qualifications to do so. As for another expert (awkward writing because I hate using names when I don’t have to, sorry), the court found that the expert’s causation opinion was properly excluded because it was offered in his capacity as a treating doctor.
How does this make sense? Well, Florida law requires plaintiff to show that the treating doctor would have recommended that she stop taking Fosamax if they had known about the risks. Here, the treating doctor did not know she was taking Fosamax during the relevant time period.
What is the settlement value of the remaining Fosamax cases? A lot less than I originally thought they would be and even less after this verdict. Can the cases be turned around? Absolutely? But right now, if you had a graph of the expected average settlement value of Fosamax cases, I think you would see a downward slope. I’d like to be proven wrong.
You can read the full opinion in Secrest v. Merck here.