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Merck Loses $8 Million Verdict in Trial Over Fosamax

Merck & Co. lost the second trial to reach a verdict over claims its osteoporosis drug Fosamax causes so-called jaw death. The jury set damages at $8 million.

A jury in New York ruled against Merck today in the case of Shirley Boles, 72, of Fort Walton Beach, Florida, awarding $3 million more than the $5 million her lawyers had asked for. Boles claimed she developed osteonecrosis of the jaw, or ONJ, from taking Fosamax. The first Fosamax case resulted in a Merck victory in May.

Boles “took on a giant and won,” said Timothy O’Brien, one of her lawyers.

U.S. District Judge John Keenan, who is overseeing federal Fosamax litigation, scheduled three so-called bellwether trials that may point the way to out-of-court settlements and show each side the other’s strategy. The third case is to be tried in November.

“We believe the jury verdict was a result of plaintiff’s counsel’s inflammatory and prejudicial remarks,” Paul F. Strain, a lawyer for Merck, said in a statement.

Merck unsuccessfully moved for a mistrial, claiming another lawyer for Boles, Gary Douglas, improperly used his closing statement to encourage the seven-person jury to punish Merck with its verdict.

‘Outrageous Summation’

“I have never heard a more outrageous summation in my life than the one I heard yesterday,” Keenan, 80, told lawyers today outside the jury’s presence.

Strain said in a phone interview that the jury’s findings and the amount awarded aren’t consistent with the evidence introduced in the trial. Merck will ask Keenan to throw out the verdict and, if necessary, will appeal, he said.

Boles was the plaintiff in the first to go to trial, beginning last August. On Sept. 11, Keenan declared a mistrial after the jury said it couldn’t reach a verdict.

In May, Merck won the first Fosamax case to reach a verdict when the jury ruled that Louise Maley of Muncie, Indiana, didn’t have ONJ.

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.

Jury Findings

Jurors today found that Fosamax is defectively designed and unreasonably dangerous and that the drug was negligently designed, according to O’Brien.

Boles’s second trial began June 7 with jury selection. She is a retired deputy from the Okaloosa County Sheriff’s Office whose doctor prescribed Fosamax because of a stress fracture in her foot, she testified. She eventually developed problems in her mouth and then ONJ, she said.

Merck, based in Whitehouse Station, New Jersey, as of Dec. 31 faced about 978 Fosamax cases, including suits with multiple patients, the company said in a March 30 regulatory filing. About 771 lawsuits have been consolidated before Keenan for evidence gathering.

The company had Fosamax sales of $1.1 billion in 2009, compared with $1.55 billion in 2008, the first year the drug faced U.S. generic competition. Sales in 2007 were $3.05 billion.

As of Dec. 31, Merck had reserved $38 million for defending the litigation, according to the regulatory filing. It hasn’t earmarked any money for damages.

Merck rose 32 cents to $35.93 in New York Stock Exchange composite trading at 4:15 p.m.

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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