Fosamax Update: Boles Jury Struggling; Summary Judgment Rejection

Two news items from the Fosamax front, one involving jury deliberations in the Boles trial, the other involving Merck's effort to win summary judgment in 24 other cases.  The Fosamax litigation involves about one thousand plaintiffs' claims against Merck alleging that its popular osteoporosis drug caused necrosis of the jaw.  Most of the litigation is in federal court, where Judge John Keenan of the SDNY is overseeing the MDL.

BOLES:  In the first bellwether trial, Shirley Boles v. Merck, the jury has so far been unable to reach a verdict.  The trial began on August 11, and the jury got the case on September 2.  According to this Bloomberg report, the jury informed the judge that it was unable to reach a decision, and the judge yesterday told the jury to keep working:

A federal judge instructed a jury to continue deliberating whether Merck & Co.'s osteoporosis drug Fosamax caused a Florida woman’s “jaw death,” after the panel told the judge it couldn’t decide.

U.S. District Judge John Keenan in Manhattan told the jurors to keep working today. He explained that the case is important to both the plaintiff and Merck.

“It’s very stressful to sit here and an agreement cannot be reached,” a juror wrote in one of four notes to Keenan today about the lack of unanimity among the eight-member panel. “I feel that we never will reach a verdict because everyone has a different opinion.”

SUMMARY JUDGMENT:  According to a Reuters report, Judge Keenan decided today that he would permit testimony by two plaintiff experts concerning causation based on relatively short-term exposure, and the court therefore rejected Merck's motion for summary judgment in 24 Fosamax cases:

In an opinion released Wednesday, U.S. District Judge John Keenan ruled that the plaintiffs could introduce testimony by two doctors to show that the drug can cause jaw damage after less than three years of continuous use.  Keenan said the evidence is sufficiently reliable to allow a rational jury to establish such a connection. He said individual plaintiffs will then be allowed to present expert testimony that Fosamax caused them to suffer such damage, and that such testimony could by itself "make causation a genuine issue of fact for trial."

HME