Friday, September 11, 2009

Fosamax Mistrial

Judge John Keenan declared a mistrial today in Boles v. Merck, the first bellwether trial in the Fosamax litigation.  As we mentioned yesterday and the day before, tensions have run high in the jury room.  Here's an excerpt from the Wall Street Journal's report:

A judge declared a mistrial Friday in a closely watched case involving Merck & Co.'s osteoporosis drug Fosamax after a jury failed to reach a verdict amid tense jury deliberations.  The mistrial came two days after U.S. District Judge John F. Keenan in Manhattan called for a daylong "cooling off" period as one juror claimed in a note to have been the subject of physical threats and that a chair was thrown in the jury room.  The judge declared a mistrial Friday after the jury's forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, again asked for a mistrial.

According to Merck's lawyer, the jury appeared to be "seven-to-one in Merck's favor."  The natural tendency of litigators to put favorable spin on a mistrial might make one skeptical of such an assertion, but it's noteworthy that the plaintiff's lawyer pushed hard for the mistrial while Merck opposed the mistrial motion.

The WSJ report mentioned that a conference has been scheduled for October and the plaintiff's lawyer said he expects a retrial in the spring.

The next two trials are scheduled for Dec. 1, 2009 and Jan. 11, 2010.


Update:  here's a link to the New York Times article, which contains a multimedia link to the juror's notes and the request for a new trial.


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