On this coming Tuesday afternoon in Manhattan, the very-able federal trial Judge John F. Keenan will hear oral arguments -- on the question of whether to allow Merck to seek an extraordinary appeal of the Boles II Fosamax® ONJ jury verdict (I've previously opined that Merck is likely to lose that argument, here).
After that argument, he will also hear Merck make arguments that a purported settlement agreement between Linda Secrest and some of her treating physicians ought to be made available to Merck, as evidence in her case. The general rule is that the actual details of civil settlement agreements are non-discoverable, other than the fact that such agreements exist -- and are generally never properly allowable as evidence in a civl trial of this sort. Nonetheless, Judge Keenan will hear Merck's protestations to the contrary on this point, thus -- via an overnight minute order:
. . . .The Court is currently scheduled to hear oral argument on Merck's motion for certification of an interlocutory appeal in the Fosamax MDL bellwether case Boles v. Merck & Co., Inc., 06 Civ. 9455 (JFK), onWednesday, January 19, at 2:00 p.m. The Court will allow Merck to be heard on its proposed motion to compel the production of the settlement agreement at that time. . . .
Merck will also be allowed to depose two of Mrs. Secrest's medical experts, between now and the March trial date. However, at least initially, Judge Keenan has rebuffed efforts by Mrs. Secrest's lawyers to depose Merck experts prior to trial -- saying that these experts have testified in the other three ONJ bellwether trials, and may properly be cross-examined if any of their testimony at trial varies from earlier testimony. Here is a good summary of what is at stake in this ONJ trial -- click to enlarge:
We will (as ever) keep you posted.
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