U.S. District Judge John F. Keenan in Manhattan today denied Merck’s request for a defense verdict or a new trial. The case resulted in a verdict for Shirley Boles, a 72-year-old Fort Walton Beach, Florida, woman who claimed she developed osteonecrosis of the jaw, or so-called jaw death, from taking Fosamax.
Keenan ruled that the $8 million verdict was unreasonably high. He said Boles may choose between a reduced award of $1.5 million or a retrial to determine damages.
“A significant damage award is warranted, but the $8 million deviates substantially from what would be reasonable compensation,” Keenan wrote.
Merck said it will appeal Keenan’s refusal to throw out the verdict entirely or to order a new trial.
“Both the finding and the amount of compensatory damages are against the weight of the evidence,” Bruce N. Kuhlik, Whitehouse Station, New Jersey-based Merck’s general counsel, said in a statement. “The evidence showed that Fosamax did not cause the plaintiff’s injury and that it is a safe and effective medication that was properly designed.”
The Boles suit was the second of two bellwether cases to reach a verdict before Keenan, who is overseeing federal Fosamax litigation nationwide. The first trial resulted in a verdict for Merck. A third case is set for trial this month. In an order dated Sept. 23, Keenan ordered an additional two bellwether cases to be tried next year.
Fosamax plaintiffs claim Merck misrepresented the drug’s safety and failed to warn doctors and patients that it might hamper blood flow to the jaw, causing jawbone-tissue death.
Fosamax, available in pill or liquid form, is part of a group of medicines known as bisphosphonates.
Merck had argued that the behavior of one of Boles’s lawyers, Gary Douglas, at the trial was so outrageous that a new trial was required.
“Mr. Douglas delivered his argument in an agitated tone, scuttling about the well of the courtroom, oddly gesturing, singing, and laughing, a style that may best be described as manic,” Keenan wrote.
Keenan, who also referred to Douglas’s “often unintelligible rambling” and said his behavior at the trial “fell far shy of the standards for professional conduct,” said he didn’t believe a new trial was warranted. Instead Keenan fined Douglas $2,500.
Tim O’Brien, another Boles lawyer, didn’t immediately return a call seeking comment on today’s ruling.
“The hundreds of judges who have seen Mr. Douglas’s careful and responsible advocacy understand that he respects the court process,” said Michael S. Ross, a lawyer who represented Douglas in opposing the fine. “He respectfully disagrees with the language used by Judge Keenan” in the opinion.
Ross said Douglas is considering whether to appeal the fine.
The case is Boles v. Merck & Co., 06-cv-09455, and the lawsuits are combined in In Re Fosamax Products Liability Litigation, MDL 1789, U.S. District Court, Southern District of New York (Manhattan).
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