I think the Supremes will leave the decision of the Second Circuit undisturbed. I expect they will deny cert. without an opinion. I’d expect it to be part of a long list of no cert. dispositions, by the Court.
In fact, Merck seems pretty confident: Whitehouse Station has waived its right to brief the court on the reasons why it might feel the Second Circuit’s decision — upholding the able trial Judge Keenan’s summary judgment for Merck — was correct. Here’s a bit from Law 360, as to what the appeal is all about — do go read it all:
. . . .The physician at issue, Dr. Lawrence Epstein, testified in a deposition in 2008, before Merck filed a summary judgment motion, that he had not known Secrest was taking Fosamax in 2004 and 2005, after she had started seeing another doctor.
When he was deposed again in 2011, after the motion was filed, he said he had known about Secrest’s Fosamax use during those two years, and that he would have advised Secrest to stop taking the drug if Merck had warned him of the jaw-related risks.
“If the Second Circuit had applied the more expansive standard of the Seventh Circuit, it would have determined that Dr. Epstein’s second deposition was merely a conflicting deposition, not a sham,” Secrest’s petition states. . . .
We will let you know how the May 30 Supreme Court Conference session on this one turns out — but I’d be very surprised if they grant Mrs. Secrest a hearing, or any sort of remand for new determinations on this trial record.
All of that said, though — I do think the Seventh Circuit’s formulation of the test more reliably comports with our long-standing notion that issues of fact (and credibility) should be left in the hands of a jury to decide. I suppose it is possible here, that Judge Keenan (who sat through the whole trial with the jurors) found Dr. Epstein’s statements so lacking in credibility that he decided no reasonable juror could rely on either version of the doctor’s testimony, and thus took the matter out of the jury’s hands, altogether.