Newly Discovered Relevance — In “Old” Evidence, For Graves’ Fosmax® ONJ Case (And, Potentially, Other Cases)?


You’ll likely recall that Merck won the Graves Fosamax® ONJ trial last fall. It is now the subject of a pending appeal. It subsequently appears (from a December 22, 2010 electronic filing) that one of the grounds for appeal will be the lately-discovered relevance of evidence in the files of one Dr. Thomas A. Musliner, apparently a Merck expert. The substance of what Dr. Musliner’s files contain will be made public by January 3, 2011 — see below:

. . . .In consideration of letters received by the Court from the Plaintiff on December 17 and 22, 2010 [not yet available in the PACER/ECF filing system] and from Defendant on December 21, 2010 [ditto], the Plaintiff is granted leave to move pursuant to Rule 60 of the Federal Rules of Civil Procedure for relief from the November 23, 2010 Judgment.

Plaintiff is directed to file the motion and a support memorandum by close of business on January 3, 2011, and to affix copies of the above-mentioned letters to the memorandum. Defendant is directed to respond by the close of business on January 18, 2011. If Plaintiff chooses to reply, Plaintiff must do so by the close of business on January 24, 2011.

Plaintiff’s December 22 letter admits that the central issue of this motion is not evidence newly discovered from the files of Dr. Musliner. Rather, according to the Plaintiff, the issue is when the materiality of the evidence became apparent. Therefore, Plaintiff’s request to depose Dr. Musliner is denied. There is no need for oral argument on this motion.

SO ORDERED. . . .

/s/ Judge John F. Keenan,
December 22, 2010
United States District Judge

This motion is likely to lead to an order from Judge Keenan, saying that the Musliner evidence cannot now be admitted, post trial. And that expected ruling will, in turn, be a substantial part of the basis for Mrs. Graves’ appeal of the defense verdict.

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