Merck Loses Round In A Fosamax® ONJ Bellwether Case

Merck loses a round -- in the Secrest Fosamax^® ONJ litigation:

. . . .Before the Court is Merck's request to preclude certain testimony by an expert witness for the Plaintiffs. In a letter to the Court dated January 28, 2011, Merck requests that the Court preclude Plaintiffs' expert, Dr. Robert Marx, "from offering new, undisclosed opinions based on" materials reviewed by Dr. Marx after the submission of his Rule 26 expert reports in this case. (Defendant's Letter, at 1.) Merck argues that Dr. Marx revealed previously undisclosed expert opinions at his January 21, 2011 deposition, and based these opinions on "updated" versions of pathology reports first revealed to Merck at the January 21 deposition. (Id. at 2.) Merck objects to any testimony offered by Dr. Marx that is based on materials which Merck did not have an opportunity to review in advance of the January 21 deposition.

In his letter in response dated January 28, 2011, counsel for the Plaintiffs argues that Merck's request raises an issue "best presented not as a letter brief but rather as a Daubert challenge or motion In limine." (Plaintiff's Letter, at 2.) Counsel for the Plaintiffs also stated that he would be willing to produce Dr. Marx for yet another deposition, in order to prevent undue prejudice to Merck. (Id.)

The Court agrees with counsel for the Plaintiffs that the presentation of this dispute by way of a letter brief is inappropriate in light of the current briefing schedule for Daubert and in limine motions. Merck's request to preclude the testimony is DENIED at this time. Any undue prejudice suffered by Merck as a result of Dr. Marx's reliance on the pathology reports at issue may be obviated by an additional deposition of Dr. Marx. Therefore, Plaintiffs are directed to make Dr. Marx reasonably available for deposition if requested by Merck.

The parties are directed to submit no further correspondence related to these matters by way of letters to the Court; any outstanding issues relating to the admissibility of evidence before trial will be decided by the Court in the parties' Daubert motions or motions in limine.

SO ORDERED.

Dated: New York, New York

January 28, 2011. . . .

Stay-tuned -- for the March 14, 2011 trial date.