James E. Cecchi 

Donald A. Ecklund 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO, P.C. 

5 Becker Farm Road 

Roseland, New Jersey 07068 

(973) 994-1700 

Attorneys for Plaintiff Deloris M. Zessin, 

Marilyn Young and Susan Johnson 

Edward Braniff 

James Morris 

WEITZ & LUXENBERG, P.C. 

700 Broadway 

New York, New York 10003 

(212) 558-5500 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

IN RE: FOSAMAX (ALENDRONATE SODIUM) 

PRODUCTS LIABILITY LITIGATION 

MDL No. 2243 

Master Docket No. 08-08 (JAP)(LHG) 

Civil Action No. 11-cv-3918 (JAP)(LHG) 

Civil Action No. 11-cv-3225 (JAP)(LHG) 

Civil Action No. 11-cv-5301 (JAP)(LHG) 

THIS DOCUMENT RELATES TO: 

Zessin v. Merck Sharp & Dohme Corp., f/k/a Merck 

& Co., Inc., 

Civil Action No.: 11-cv-3918 (JAP)(LHG) 

Young v. Merck Sharp & Dohme Corp., f/k/a Merck 

& Co., Inc., 

Civil Action No.: 11-cv-3225 (JAP)(LHG) 

Johnson v. Merck Sharp & Dohme Corp., f/k/a 

Merck & Co., Inc., 

Civil Action No.: 11-cv-5301 (JAP)(LHG) 

Document Filed Electronically

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO 

DEFENDANT’S MOTION TO STRIKE DR. ROBERT MAKUCH AND 

EXCLUDE HIS TESTIMONY AT TRIAL 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 1 of 14 PageID: 230
ii 

TABLE OF CONTENTS 

Table of Authorities .................................................................................................................. iii, iv 

I. Introduction ............................................................................................................................1 

II. Argument ...............................................................................................................................2 

A. Merck’s Motion Should Be Denied Because 

Dr. Makuch’s Report was Timely Under CMO 4(A) ......................................................2 

B. Merck’s Motion Should Be Denied for 

Failure to Comply with Local Civil Rule 37.1 

for the District of New Jersey .........................................................................................4 

C. Merck Does Not Satisfy the Prerequisites 

for the Severe Remedy That it Seeks ...............................................................................6 

D. Plaintiff’s Disclosure of Dr. Makuch is 

Harmless Under All Authorities ......................................................................................7 

 

E. Even If the Law Allowed Sanctions in this Case, 

The Facts of the Case Do Not Warrant Them..................................................................9 

III. Conclusion .............................................................................................................................10

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 2 of 14 PageID: 231
iii 

TABLE OF AUTHORITIES 

Cases: 

ABB Air Preheater, Inc v. Regenerative Envtl. Equip. Co., 

 167 F.R.D. 668 (D.N.J. 1996) ..............................................................................................8 

Acorda Therapeutics Inc. v. Apotex Inc., 

 Civil Action No. 07-4937 (GEB-MCA), 2011 WL 52521 

 (D.N.J. Jan 6, 2011) .............................................................................................................4 

Bowers v. Nat’l Collegiate Athletic Ass’n, 

 Civil Action No. 97-2600 (SMO), 

 1998 WL 35180779, 

 (D.N.J. Sept. 17, 1998) ........................................................................................................5 

Exxon Corp. v. Halcon Shipping, 

 156 F.R.D. 589 (D.N.J. 1994) ..............................................................................................9 

Fitz, Inc. v. Ralph Wilson Plastics Co., 

 174 F.R.D. 587 (D.N.J. 1997) ..............................................................................................1 

Huertas v. City of Camden, 

 Civil Action No. 06-4686, 2008 U.S. Dist. LEXIS 90219, 

 (D.N.J. Nov. 6, 2008) ...........................................................................................................5 

In re Paoli R.R. Yard PCB Litig., 

 35 F.3d 717 (3d Cir. 1994)...................................................................................................8 

Meyers v. Pennypack Woods Home Ownership Ass’n, 

 559 F.2d 894 (3d Cir. 1977).................................................................................................4 

Network Appliance, Inc., v. Bluearc Corp., 

 No. C 03-5665 MHO, 2005 U.S. Dist. LEXIS 16726, 

 (N.D. Cal. June 27, 2005) ....................................................................................................7 

Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 

 60 F.3d 153 (3d Cir. 1995) ..............................................................................................4, 8 

Nicholas v. Pa. State Univ., 

 227 F.3d 133 (3d Cir. 2000).................................................................................................8 

RLA Mktg, Inc. v. WHAM-O, Inc., 

 Civil Action No. 04-3442 (HAA), 2007 U.S. Dist. LEXIS 16629, 

 (D.N.J. Mar. 5, 2007) ...........................................................................................................5 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 3 of 14 PageID: 232
iv 

Tech. Dev. Co. LTD, v. Onischenko, 

 Civil Action No. 05-4282 (MLC), 2009 U.S. Dist. LEXIS 93034, 

 (D.N.J. Oct. 5, 2009) ............................................................................................................5 

Other Authorities:

D.N.J. Local Civ. Rule 37.1 .....................................................................................................1, 4, 5 

Fed. R. Civ. P. 26 .................................................................................................................2, 3, 4, 8 

Fed. R. Civ. P. 37. ................................................................................................................4, 6, 7, 8

Case Management Orders:

CMO 4. ........................................................................................................................................3, 4

CMO 4(A) ................................................................................................................................2, 3, 4 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 4 of 14 PageID: 233
1 

I. INTRODUCTION 

Plaintiffs, Deloris M. Zessin, Marilyn Young, and Susan Johnson respectfully submit this 

memorandum of law in opposition to the motion of Defendant Merck Sharp & Dohme Corp. 

(“Merck”) to strike Dr. Robert Makuch’s expert report and preclude him from testifying at trial.1

 

As this Court is aware, trial is set to commence in the Zessin matter in January 2014. On April 1, 

2013, Plaintiff timely served Dr. Robert Makuch’s report on counsel for Merck, approximately 

ten months before the January 2014 trial date, and within the time to serve expert disclosures in 

the Zessin matter. 

The disclosure of Dr. Makuch’s report and his testimony at trial will not prejudice Merck. 

Indeed, in late-April, after serving Dr. Makuch’s report, Plaintiff offered to produce Dr. Makuch 

for his deposition within 30 days – a date that would have likely occurred before the return of 

this motion and certainly months before trial – and to allow Merck to serve an appropriate rebuttal 

report to respond to his opinions, which would have remedied any resulting prejudice. See Fitz, 

Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 591 (D.N.J. 1997) (finding that prejudice 

from late disclosure of an expert may be remedied by permitting deposition and allowing 

supplemental briefing). Merck refused this offer. 

Further, notwithstanding the parties’ efforts throughout this litigation to attempt to 

amicably resolve discovery disputes in accordance with Local Civil Rule 37.1 for the District of 

New Jersey, Merck filed this motion without even attempting to resolve this dispute. In this 

District, however, before filing a motion seeking to strike an expert report or other evidence, the 

movant must first try to meet and confer. Merck has not only made no efforts to meet and 

 

1

 Because Merck filed its motion to strike in the remaining initial bellwether trials (Zessin, 

Young, and Johnson), Plaintiffs are filing this opposition on behalf of all three Plaintiffs. 

However, the discovery deadlines at issue only pertain to Plaintiff Deloris Zessin, and therefore, 

reference to Plaintiff throughout this brief refers to Plaintiff Deloris Zessin. 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 5 of 14 PageID: 234
2 

confer, it has rejected Plaintiff’s invitations to do so twice since the filing of its premature 

motion. 

For all the foregoing reasons, Merck’s motion to strike should be denied. 

II. ARGUMENT 

A. Merck’s Motion Should be Denied Because Dr. Makuch’s Report was Timely Under 

CMO 4(A). 

In this case, Plaintiff Deloris Zessin’s submission of her Rule 26(a)(2) expert disclosure 

was timely made. Merck argues that the general causation expert in Zessin is different from the 

one identified in Glynn and thus cannot be used in the Zessin case. However, the expert 

discovery provided in the Glynn trial was specific to Glynn. In the Glynn case, expert disclosure 

was made pursuant to procedures put in place by this Court pursuant to Case Management Order 

(“CMO”) 4(A). Specifically, CMO 4(A), provides specific and different discovery deadlines for 

the Glynn and Zessin matters. This CMO sets forth the disclosure deadlines in the Glynn matter 

at page 2, paragraph 4, under the clearly labeled heading “4. Glynn Pretrial Schedule.” Pursuant 

to this schedule, the parties in Glynn were required to complete expert discovery by January 11, 

2013. The provisions that fall under the Glynn heading are specific to the Glynn case, and no 

other case. There is no mention of the MDL or any denoted MDL expert deadlines set forth 

under the Glynn heading. 

The Zessin case has its own italicized heading and following paragraph which sets out a 

timetable for Rule 26(a)(2) disclosure and expert depositions. Although Defendant argues that 

Dr. Makuch’s disclosure is prejudicial, Merck recently disclosed experts in the Zessin case who 

are being clearly being offered for the purpose of their generic opinions.2

 Plaintiff followed the 

 

2 Merck’s attempts to exclude Dr. Makuch’s expert report on the basis that his opinions are 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 6 of 14 PageID: 235
3 

very same procedures in the Zessin case when she filed her Rule 26(a)(2) disclosure. Pursuant to 

the CMO 4 procedures, Plaintiff identified the Zessin expert disclosure as being related to the 

individual case of Deloris Zessin.3 See Exhibit B, Plaintiff Deloris Zessin’s Rule 26(a)(2) 

 

pertinent only to general causation and thus are somehow prejudicial to its defenses in the Zessin

case and/or violate its inappropriate and erroneous interpretation of CMO 4, are unfounded in 

light of the substance of its own expert reports served in the Zessin case. Among the nine 

experts disclosed in the Zessin case, there are two experts, Drs. Socrates Papapoulos and Gary 

Friedlaender, who were not previously disclosed in the Glynn case. Presumably, following the 

faulty logic presented in Merck’s motion to exclude the testimony of Dr. Robert Makuch, these 

newly-disclosed Merck experts are to offer case-specific opinions about Mrs. Zessin. 

The substance of these two reports, however, are patently those of general causation 

experts based on the length and breadth devoted to their general causation discussion and 

opinions, and the questionable relevance of many of these opinions to Mrs. Zessin’s case. For 

example, Dr. Friedlaender offers a 36-page report in which there is no discussion of Mrs. Zessin 

until page 27. Similarly, Dr. Papapoulos’s report, spanning 88 pages in length, does not discuss 

the Zessin case until page 68, a case-specific evaluation that spans only 11 pages before turning 

to a critique of Dr. Mechrefe’s report. 

Moreover, the scope of the general causation opinions offered ranges widely, with 

many topics having little or nothing at all to do with the Zessin case. For example, pages 7-11 

of Dr. Papapoulos’s report discusses at length a variety of diseases of the skeleton such as 

Paget’s disease, malignancy-associated bone disease, osteomalacia, ectopic calcification and 

ossification, and osteopetrosis, none of which are relevant to the Zessin case. Dr. Papapoulos 

devotes pages 11-18 of his report to a discussion of bisphosphonates generally. On pages 25-28, 

Dr. Papapoulos devotes an entire section to the effects of bisphosphonates on the incidence of 

vertebral fractures, yet another condition wholly irrelevant to Mrs. Zessin’s medical history. He 

further devotes many pages to long-term effects of bisphosphonates, length of treatment of 

osteoporosis with bisphosphonates, and summarizes five general causation questions that provide 

the premise for the next 23 pages of his report. Though these opinions very well may be relevant 

and well-founded for a general caution expert report, they have questionable and limited 

relevance to Mrs. Zessin’s case-specific analysis. 

If Merck indeed intended, for the deadlines in the Glynn section of the CMO 4(A) to 

apply to Zessin general causation experts, it is puzzling that Merck has designated two experts in 

Zessin whose opinions focus largely on general causation. 

3

It is also notable that in the Glynn case, the expert reports of Drs. Charles Cornell and Michael 

J. Klein were exchanged with the Defendant and labeled as relating to the individual case of 

Bernandette Glynn and Richard Glynn. The labeling of these reports was done pursuant to the 

requirements and procedures set forth in CMO 4, page 4 paragraph 2, which requires papers and 

documents related to individual cases to be labeled in that manner. Likewise, Defendant’s 

Daubert motion in the Glynn case to preclude the testimony of Drs. Charles Cornell and Michael 

J. Klein was also labeled as relating to the individual case of Bernandette Glynn and Richard 

Glynn. See Exhibit A, Excerpted Expert Reports of Drs. Charles Cornell and Michael J. Klein, 

dated 10/15/2012, annexed to the Declaration of James E. Cecchi. Clearly Merck’s Daubert 

motion did not seek to preclude these expert witnesses testimony as to all cases in the MDL, 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 7 of 14 PageID: 236
4 

disclosure, served 4/1/2013, annexed to the Declaration of James E. Cecchi. Accordingly, the 

expert disclosure in the Zessin case was timely served under CMO 4(A) and Defendants motion 

should be denied. 

B. Merck’s Motion Should Be Denied for Failure to Comply with Local Civil 

Rule 37.1 for the District of New Jersey. 

Even if the factual underpinnings of Merck’s motion supported its claimed relief, 

Merck’s effort to strike Dr. Makuch should fail because it is contrary to Rule 37 of the Federal 

Rules of Civil Procedure and Local Civ. Rule 37.1. Merck’s reliance on Rule 26 instead of Rule 

37 is inappropriate. See Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 

156 (3d Cir. 1995) (recognizing that Rule 37 “is designed to provide inducement for disclosure 

of Rule 26(a) material”). In this instance, both the parties’ discovery dispute and the authority to 

strike Dr. Makuch’s report and exclude his testimony are governed by Rule 37 and Local Civ. 

Rule 37.1. Merck offers no factual or legal basis for application of Rule 26 in connection with 

the relief that it seeks or authority that would excuse its violation of Rule 37 and Local Civ. Rule 

37.1.

4

 

otherwise it would have followed the procedures as set forth in CMO 4 page 4 paragraph 2. 

4

 In deciding whether to strike a late expert disclosure under Rule 26 and Rule 37, in this Circuit, 

courts consider: “(1) the prejudice or surprise to the party against whom the evidence is to be 

presented; (2) the ability of that party to cure the prejudice; (3) the extent to which the waiver of 

the schedule would disrupt the orderly and efficient trial of the case; and (4) bad faith or 

willfulness in failing to comply with the court’s order.” Acorda Therapeutics Inc. v. Apotex Inc., 

Civil Action No. 07-4937 (GEB-MCA), 2011 WL 52521, at *1 (D.N.J. Jan. 6, 2011) (citing 

Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977). Each 

factor supports denial of Merck’s motion. 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 8 of 14 PageID: 237
5 

The Court should deny Merck’s motion to compel for failing to comply with Local 

Civ. Rule 37.1, which states:

Counsel shall confer to resolve any discovery dispute. Any such 

dispute not resolved shall be presented by telephone conference 

call or letter to the Magistrate Judge. This presentation shall 

precede any formal motion.

Here, Merck violated the letter and spirit of the rule by failing to meet and confer. Additionally, 

Merck did not present the discovery dispute to the Court via telephone conference call or letter. 

Having failed to do so, Merck is simply not entitled to the relief it seeks because the “motion 

itself is defective on its face.” Tech. Dev. Co. LTD, v. Onischenko, Civil Action No. 05-4282 

(MLC), 2009 U.S. Dist. LEXIS 93034, at *1, *6-7 (D.N.J Oct. 5, 2009); see also Huertas v. City 

of Camden, Civil Action No. 06-4676, 2008 U.S. Dist. LEXIS 90219, at *1, *19-20 (D.N.J. Nov. 

6, 2008) (denying sanctions for failure to meet and confer in good faith); Bowers v. Nat’l 

Collegiate Athletic Ass’n, Civil Action No. 97-2600 (SMO), 1998 WL 35180779, at *1, *2, 

(D.N.J. Sept. 17, 1998) (admonishing counsel for failure to follow the Local Rules before filing 

motion for leave to serve additional interrogatories); see also RLA Mktg, Inc. v. WHAM-O, Inc., 

Civil Action No. 04-3442 (HAA), 2007 U.S. Dist. LEXIS 16629, at *1 (D.N.J. Mar. 5, 2007) 

(recognizing that failure to adhere to the procedure set forth in Local Civ. Rule 37.1 may require 

Court’s involvement where meet and confer process may have resolved the dispute). 

Merck also failed to comply with Local Civ. Rule 37.1(b)(1) by failing to include an 

affidavit certifying that they conferred “with the opposing party in a good faith effort to 

resolve by agreement the issues raised by the motion without the intervention of the Court and 

that the parties have been unable to reach agreement.” See Local Civ. Rule 37.1(b)(1). Instead, 

Merck rushed to the Court with its premature motion before it even informed Plaintiff that it 

disagreed with the propriety of the report. Accordingly, the Court should deny Merck’s motion 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 9 of 14 PageID: 238
6 

for failure to follow the local rules. 

C. Merck Does Not Satisfy the Prerequisites for the Severe Remedy That It Seeks. 

The express requirements of Rule 37, which provides the authority for imposing the 

drastic relief that Merck seeks, requires a showing that Plaintiff failed to meet her initial or 

supplemental disclosure obligations and that such failure was not “substantially justified or is 

harmless.” Merck does not – and cannot – make such a showing. Even if Merck could satisfy 

its Rule 37(c) burden of showing that Plaintiff’s disclosure of Dr. Makuch was untimely, the 

production was justified. The scope and breadth of the case, information that discovery 

continues to reveal, and insights gained from the trial in Glynn have necessarily impacted 

Plaintiff’s case. Plaintiff did not intentionally withhold any relevant reports or other evidence, 

waiting to spring them on Merck at or just before trial. Indeed, Plaintiff has already offered to 

produce Dr. Makuch for deposition and has offered to work out a schedule within which Merck 

could serve a supplemental report that addresses his opinions. Merck rejected this proposal. 

There is no bad faith on Plaintiff’s part and no support for the sanctions Merck seeks. 

Regardless, and as Plaintiff has always intended, she will produce Dr. Makuch for his deposition 

and will disclose any and all materials that support his opinions long before trial – and indeed, 

has offered to do so already. 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 10 of 14 PageID: 239
7 

D. Plaintiff’s Disclosure of Dr. Makuch Is Harmless Under All Authorities. 

Merck has failed to show some harm to justify precluding Plaintiff’s from relying upon 

Dr. Makuch’s report and testimony at trial. Merck’s current objections to Dr. Makuch’s report 

are especially remarkable as none of the case citations involved a similar circumstance and, in 

fact, most of them involved applications made pursuant to Rule 37. Moreover, none of Merck’s 

case citations took place in a multi-district litigation setting where, as here, the expert report is 

timely under the disclosure deadlines in the individual bellwether case and, thus, provides 

adequate notice to Merck and ample time to conduct discovery of the opinions set forth in the 

report. No case allows a defendant to preclude an expert simply because the opinions will 

require that defendant engage in an analysis of the opinions – particularly over half a year before 

trial. Instead, Merck contends that it has been prejudiced because, in its view, the disclosure of 

Dr. Makuch is little more than an attempt to “jettison” Drs. Klein and Cornell or seek a 

“mulligan” from the Court. There is no factual support for either assertion. And not 

surprisingly, Merck provides no authority for the extraordinary relief that it now requests. 

The uncontradicted and extensive case law holds that exclusion of evidence under Rule 

37 is a severe remedy, only granted in extreme situations. “[O]n the menu of sanctions that a 

court may select from in applying Rule 37, preclusion of evidence is among the most severe; 

indeed, under certain circumstances, the imposition of preclusive sanctions may be tantamount to 

dismissal of a plaintiff’s claims or entry of default judgment against a defendant.” Network 

Appliance, Inc., v. Bluearc Corp., No. C 03-5665 MHO, 2005 U.S. Dist. LEXIS 16726, at *1, 

*9, *11-12 (N.D. Cal. June 27, 2005) (refusing Rule 37 request to exclude evidence based on 

assertions of untimely production). Where, as here, the moving party “has abundant time to 

depose [the expert] regarding the specifics of [his opinion],” there is “little in favor of 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 11 of 14 PageID: 240
8 

exclusion.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 792 (3d Cir. 1994). 

Indeed, the only cases where expert testimony has been excluded under Rule 37 are 

where the precluded party springs new evidence or testimony on the other side at or just before 

trial. See, e.g., Nicholas v. Pa. State Univ., 227 F.3d 133, 148 (3d Cir. 2000) (setting forth four 

factors to consider when considering whether to exclude expert testimony pursuant to Rules 

26(a)(2) and 37(c)(1)); Newman, 60 F.3d at 156 (3d Cir. 1995) (observing that the district court 

should not exclude evidence or testimony if it would result in “fundamental unfairness in the trial 

of the case” or where there is prejudice, surprise or bad faith in not complying with the 

disclosure rules). 

Even if Merck has acted in compliance with the rule, requests under Rule 37(c) for 

evidence preclusion, or even lesser sanctions, are regularly rejected on far more egregious facts 

than are alleged here. Indeed, “[t]he Third Circuit has, on several occasions, manifested a 

distinct aversion to the exclusion of important testimony absent evidence of extreme neglect or 

bad faith on the part of the proponent.” ABB Air Preheater, Inc. v. Regenerative Envtl. Equip. 

Co., 167 F.R.D. 668, 671 (D.N.J. 1996) (citing cases). Merck’s request, if granted, would be 

unprecedented. Contrary to the circumstances described above, in this case, Dr. Makuch was 

disclosed more than ten months before the trial is set to commence.5

Nothing Merck surmises about what it may need to do to respond to Dr. Makuch shows 

that it cannot and will not be ready to meet Plaintiff head-on at trial in January 2014. Plaintiff 

has agreed to produce Dr. Makuch for deposition so that Merck can probe the basis of his 

opinions and have also agreed to allow Merck to serve whatever supplemental report it believes 

 

5

So long as Merck is not “surprised” at trial by any of Plaintiff’s experts’ opinions or evidence 

(which it will not be, because Plaintiff’s reports and testimony will be complete and clear and all 

evidence will have been produced), then it will have no future basis for a Rule 37(c)-based 

motion in limine. 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 12 of 14 PageID: 241
9 

is necessary to address his opinions. There is simply no surprise or bad faith. See Exxon Corp v. 

Halcon Shipping, 156 F.R.D. 589, 591 (D.N.J. 1994) (violations of scheduling orders coupled 

with unsatisfactory explanations may be characterized as bad faith). Plaintiff has offered a 

solution that will cure any theoretical prejudice and that will not disrupt the trial in January 2014. 

Simply put, Dr. Makuch’s report is timely and, even assuming argumendo that it was not, 

there is no prejudice to Merck. Rather, Plaintiff diligently endeavored to address Merck’s 

concerns and rather than reflecting bad faith, Plaintiff requested to meet and confer with Merck 

to resolve these issues without involving the Court in compliance with the Federal Rules (an 

expression of Plaintiff’s good faith), which Merck has rejected twice. The only thing that would 

interfere with the rightful decision of the case is barring Plaintiff from relying upon the opinions 

of a qualified expert disclosed several months before trial. In sum, Merck has come to the Court 

at the wrong time, and without making the necessary showing for the drastic, unprecedented 

relief it seeks. 

E. Even If the Law Allowed Sanctions in this Case, the Facts of the Case Do Not 

Warrant Them. 

 In addition to having no support in case law, Merck’s motion is undercut by the reality of 

this case’s history. This record contains nothing remotely close to the facts necessary for 

preclusion. The actual record shows no prejudice to Merck – particularly on the expanded case 

schedule recently established by the Court. Regardless, Plaintiff disagrees that the Court’s case 

management order somehow precluded the parties from disclosing different experts in the 

subsequent bellwether trials. 

It is worth stepping back and considering what sanction Merck seeks by its motion. If a 

general causation expert who testified during Glynn was unable (for any reason) to render an 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 13 of 14 PageID: 242
10 

opinion or is unavailable to testify in Zessin, Young, or Johnson would those plaintiffs be 

precluded from relying upon another qualified expert? The preclusion that Merck seeks is 

draconian relief. It blocks any examination of Dr. Makuch’s opinions, any examination of those 

opinions against the facts in this case (which differ from those in Glynn), and any effort to reach 

a just result. It hides the merits of Dr. Makuch’s opinions for reasons that have nothing to do 

with those merits. The remarkable sanctions sought here cannot occur unless Merck meets all 

elements of the high standard required by the law on a record that is compelling. There is no 

basis for such sanctions here. Merck should depose Dr. Makuch and provide whatever 

supplemental report it believes is appropriate to respond to his opinions. Merck’s Rule 37 

motion (mischaracterized as a Rule 26 motion) must be denied. 

III. CONCLUSION 

 This Court should deny Merck’s motion to strike and should enter the proposed Order 

provided by Plaintiffs. 

 CARELLA, BYRNE, CECCHI, 

 OLSTEIN, BRODY & AGNELLO, P.C. 

 Attorneys for Plaintiffs 

 BY: /s/ James E. Cecchi 

Dated: May 14, 2013 JAMES E. CECCHI 

 

Of Counsel: 

Edward Braniff 

James Morris 

WEITZ & LUXENBERG, P.C. 

700 Broadway 

New York, New York 10003 

(212) 558-5500 

Case 3:11-cv-03918-JAP-LHG Document 26 Filed 05/14/13 Page 14 of 14 PageID: 243