Trial in the fourth Fosamax MDL bellwether case, Secrest v. Merck, is scheduled to begin today. So, we thought it appropriate to discuss the MDL court’s recent summary judgment and Daubert decisions in that case. Secrest also interests us because it involves Florida law and the only claims now left for trial are strict liability and negligent design defect. Where have we seen this before? It’s beginning to look a lot like the unfortunate case of Boles v. Merck, in which we are still waiting to see if the Second Circuit will take the interlocutory appeal of the trial court’s denial of defendant’s motion for judgment as a matter of law following an $8 million plaintiff verdict (check out our prior post here).

In Secrest, both parties filed multiple Daubert challenges and Merck filed a motion for summary judgment. While the decision initially may be viewed as Solmonesque – all of the motions were granted in part and denied in part – Merck was clearly the victor, with its experts coming out unscathed and winning summary judgment on all but plaintiff’s design defect claims. In re: Fosamax Products Liability Litigation (Secrest v. Merck), 2011 U.S. Dist. LEXIS 97075 (S.D.N.Y. Aug. 30, 2011). Here are our highlights of the various rulings...