2nd Cir. Upholds Summary Judgment for Merck on Fosamax Failure-To-Warn Claim

NEW YORK — A federal appeals court has affirmed a district court’s grant of summary judgment to Merck & Co. (NYSE: MRK) on a Fosamax failure-to-warn claim, finding the plaintiff’s expert testimony was properly disregarded under the “sham issue of fact” doctrine.

On Jan. 30, the 2nd Circuit U.S. Court of Appeals held that testimony given by the plaintiff’s former physician during two separate depositions was contradictory and could not be reconciled.

Linda Secrest, a Florida resident, began taking Fosamax in 1998 when her physician, Dr. Lawrence Epstein, prescribed the drug to prevent fractures and osteoporosis. Dr. Epstein prescribed Fosamax …