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First Jury Verdict For Fosamax ONJ Plaintiff Comes In June 2010: Boles v. Merck

After A Deadlock Back In September 2009, This Retrial Ends With $8 Million Award To Shirley Boles

UPDATEMerck Fosamax Verdict Cut to $1.5 Million From $8 Million (10/5/10, Bloomberg

A federal judge cut a jury award against Merck & Co. in a lawsuit over its Fosamax osteoporosis drug to $1.5 million from $8 million while upholding the verdict in the case.

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....


At the end of June 2010 a federal court jury in New York City decided an $8 million verdict in favor of the plaintiff, Shirley Boles, was the proper amount of legal compensation that the drug company Merck should pay for the osteonecrosis of the jaw (ONJ) which she had developed after using Fosamax for about ten years.

In more detail, this so-called "bellwether", or test, case trial in the federal court Fosamax Multi-district Litigation ("MDL") involved Shirley Boles, 71, of Walton Beach, Florida, who used Fosamax from 1997 to 2006 and eventually developed osteonecrosis of the jaw (ONJ) -- which has been described as jawbone tissue death. This lawsuit, Boles v. Merck & Co., is just one of the thousands of Fosamax personal injury cases that have been filed against Merck in the federal court MDL -- titled In Re Fosamax Products Liability Litigation (MDL 1789, U.S. District Court, Southern District of New York, Manhattan) -- or in the New Jersey state court system.

Just prior to the start of this Boles trial, in early June 2010, the defendant Merck issued its "Statement on FOSAMAX® (alendronate sodium) Product Liability Trial in U.S. District Court", which provided this information from the drug company about the number of Fosamax lawsuits:


As of March 31, 2010, approximately 1,039 cases, which include approximately 1,417 plaintiff groups, had been filed and were pending against Merck in either federal or state court.

Back in September 2009 the first trial of this Boles case ended in a "mistrial" after U.S. District Judge John Keenan, who is presiding over the Fosamax MDL in New York, determined that, after several days of reportedly heated deliberations, the jury was unable to reach agreement about (1) whether Fosamax caused Ms. Boles' ONJ, and (2) whether Merck should be held liable for that disabling and disfiguring jaw injury.

For some reaction from Merck to this first plaintiff verdict in the Fosamax MDL litigation, and an estimation about what the drug company will do as it attempts to avoid having to pay this $8 million verdict in the Boles cases, we turn to a June 25, 2010 Wall Street Journal article, "Merck Loses Fosamax Case":

Merck said Friday that it plans to challenge the jury's decision and believes the awarding of compensatory damages was unjustified and excessive.

"We disagree with the jury's verdict.... said Paul Strain of Venable LLP, outside counsel for Merck. "The plaintiff was at increased risk for dental and jaw problems even if she was not taking Fosamax."

Merck has argued in part that Ms. Boles, a long-time cigarette smoker, has a history of dental problems and health problems.

U.S. District Judge John Keenan, who is overseeing the federal [Fosamax] cases, set a briefing schedule and is expected to hear post-trial motions to overturn the Boles verdict in September. Merck is likely to appeal if it doesn't succeed with its post-trial motions.

More information about how Merck will be attempting to get this $8 million verdict in the Boles case either reduced or thrown out altogether can be found in the drug company's June 25, 2010 company press release, "Merck Challenges Verdict in Federal FOSAMAX(R) (alendronate sodium) Trial", which was issued the very same day that the Boles verdict was announced.

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