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From Products Liability Law Daily, May 3, 2013

Review of “Sham Affidavit Rule” Sought in Bone Loss Drug Bellwether Case

By Susan Lasser, J.D.

A patient in one of the bellwether cases in the multidistrict litigation against the manufacturer of Fosamax, a brand name bisphosphonate, which is a drug commonly used to treat bone conditions such as osteoporosis, has asked the U.S. Supreme Court to Review a ruling by the U.S. Court of Appeals for the Second Circuit that under the "sham issue of fact" doctrine, or "sham affidavit rule," the trial court was entitled to disregard "new" expert testimony by the patient’s treating physician in his second deposition (Secrest v. Merck Sharpe & Dohme Corp. Dkt No. 1213-18, filed April 30, 2013)). The Second Circuit’s determination (Secrest v. Merck Sharpe & Dohme Corp. (2ndCir), 707 F.3d 189 (January 30, 2013)) was that it was the basis of its finding that the patient, Linda Secrest, did not establish a genuine dispute of material fact in support of her claim that the drug maker, Merck Sharpe & Dohme Corp., failed to issue adequate warnings regarding the risks associated with using Fosamax, and particularly that the drug allegedly caused her osteonecrosis of the jaw (ONJ).

Background and Second Circuit’s ruling. The Second Circuit Court of Appeals found that under the "sham issue of fact" doctrine, which prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony, the lower court was entitled to disregard "new" expert testimony by the patient’s treating physician (who prescribed the drug for her to prevent bone fractures and osteonecrosis) that he provided in his second deposition. In a 2008 deposition, the physician admitted that he did not know the patient was on the drug from 2003 to 2005; while in 2011, he testified that he knew she was on the drug. Although typically applied when a party submits an affidavit that contradicts the party’s own prior statements, the Second Circuit held that the sham issue of fact doctrine also could apply when, as in this case, a party attempted to use evidence from an expert witness to defeat summary judgment. Specifically, the court said that the doctrine applied to stop the patient from manufacturing a factual dispute by submitting testimony from her own expert that contained contradictions that were "unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and [were] central to the claim at issue." The court also found it significant that the patient failed to proffer a plausible explanation that would allow a reasonable jury to reconcile the inconsistencies in the doctor’s statements.

The appellate court, too, found that the timing of the second, contradictory deposition testimony recanting the prior sworn testimony—following the manufacturer’s filing its motion for summary judgment—"increased the likelihood that it was intended solely to defeat the motion for summary judgment." Under the "unique circumstances," the Second Circuit ruled that the trial court did not err in concluding that the physician’s later testimony failed to trigger a genuine dispute of material fact, and that no reasonable juror could find that the physician would have recommended that the patient cease taking the drug if he did not know she was taking it at the relevant time.

Reasons for granting petition. The patient offered three reasons for the U.S. High Court’s granting her petition. First, she argued that the sham affidavit rule, as applied to parties, offends the U.S. Supreme Court’s directions to leave credibility determinations to juries and to not weigh competing items of evidence at the summary judgment stage. Second, the patient asserted that even if the Supreme Court does not strike the "sham affidavit rule," the rule should not be applied to third parties. Finally, the patient argued that if the sham affidavit rule does apply to third parties, the U.S. Supreme Court should determine that the more expansive rule of the U.S. Court of Appeals for the Seventh Circuit—which directs the district court to "examine the particular circumstances of a change in testimony to see whether it is plainly incredible or merely creates a credibility issue for the jury" for any witness—rather than that of the Second Circuit, applies.

Questions presented. The patient’s petition posed the following questions: “In reviewing the disposition of summary judgment motions, federal courts must believe the evidence of the non-movant and draw all justifiable inferences in her favor. In this calculus, courts must leave credibility determinations and the weighing of the evidence to the fact-finder, typically the jury. But judges have created a sham affidavit doctrine that permits them to reject later affidavits of a party that conflict with that party’s prior deposition testimony. This offends the basic rules concerning credibility and the weighing of evidence. In this case, the Second Circuit extended the rule to a later deposition of a non-party, the Petitioner’s treating physician, who testified first as a fact witness and later as a treating physician with expert opinions incidental to his treatment of the Petitioner. (The exact issue in controversy involved the treating physician’s fact testimony, not expert opinion.) The circuit courts apply different standards about how to apply the sham affidavit rule and whether, and in what circumstances, to extend that rule to third parties. Petitioner thus presents these questions for review:

  1. “Does the sham affidavit rule, as applied to parties, offend this Court’s directions to leave credibility determinations to the jury and not to weigh competing evidence at the summary judgment stage?
  2. “If not, should the sham affidavit rule be applied to non-party witnesses?
  3. “If so, under what circumstances and in what instances should the sham affidavit rule be applied?"

Attorneys: David F. Ennis (Ennis & Ennis, P.A.), Jacquelyn S. Holden (Krupnick Campbell, Malone), and Timothy Michael O'Brien (Levin, Papantonio, Thomas, Mitchell, Eschsner & Proctor, P.A.) for Linda Secrest; and Christy D. Jones (Butler, Snow, O'Mara, Stevens & Canada, PLLC), Craig A. Thompson (Venable LLP), James M. Doran , Jr. (Waller, Lansden, Dortch & Davis), Michael Joseph Corso (Henderson, Franklin, Starnes & Holt, P.A.), and Robert C. Brock (Rushton, Stakely, Johnston & Garrett, P.A) for Merck and Co., Inc.

Companies: Merck Sharp & Dohme Corp.

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