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Articles Posted in Fosamax

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Jurors sent notes to Judge Keenan during their deliberations in the Fosamax bellwether trial, yesterday. The notes referred to a lack of unanimity of the eight jurors and a feeling that they would never reach an agreement. The judge instructed them to keep working.

They’ve been deliberating for about 9 hours (which, when you consider the number of weeks the case has gone on, really isn’t much). This is the most exciting part of trials–just knowing that the jury is hashing it out, working on some kind of agreement amidst certain disagreement, and knowing that the case can still come out either way.

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Shirley Boles, courtesy of Michael Appleton, New York Times

The Shirley Boles case went to a jury of three men and five women yesterday afternoon. Attorneys for Ms. Boles, a retired deputy from the Okaloosa County Sheriff’s Office, told jurors that she had to sleep at night with a towel to wipe away puss that oozes from her jaw, and that she avoids playing with her grandson for fear that he may accidentally break her fragile jaw. Without a doubt, she is a very compelling plaintiff with an unimaginable injury.

The jury is asked to decide:

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Four weeks later (see earlier Fosamax blog posts), evidence has closed in the Shirley Boles Fosamax trial (New York). Only closing arguments and jury deliberations remain. Remember, this is the very first of three bellwether Fosamax trials, alleging that Ms. Boles suffered from osteonecrosis of the jaw after taking a drug for the prevention of osteoporosis. The jury could begin deliberations as early today or tomorrow.

Following an earlier pre-trial order of the judge, the jury will not hear about the profits that Merck has made on Fosamax, nor will they be able to entertain punitive damages.

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The Plaintiff has presented all of her evidence in the Fosamax trial in New York. Merck has filed for judgment as a matter of law–asking the judge to rule that, even if everything the Plaintiff said was true, she did not meet her burden to prove her case. These motions are routinely made and denied. The Plaintiff’s case lasted about 10 days, and it is unlikely that the judge will find any significant errors in that presentation of evidence sufficient to take the case from the hands of the jury.
If the judge denies the motion, the defense will present their evidence.

See our original blog post on the trial here.

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The first of three bellwethers (“lead”) Fosamax trials is starting today in New York federal court. Fosamax is part of MDL-1789, in the Southern District of New York (Manhattan). The case is consolidated with about 700 other Fosamax cases; there are an additional 140 cases in a New Jersey state court.

As with all bellwether trials, this will give all litigants and their lawyers a good idea of what a jury does with the evidence and testimony. From there, settlement discussions typically ensue.

Fosamax was sold by Schering-Plough Corporation, which is being bought by Merck & Co. It is among the class of drugs known as bisphosphonates and is used to treat osteoporosis. The plaintiffs claim that the manufacturer did not adequately warn that the drug could cause osteonecrosis of the jaw which is the death of jawbone tissue.