September 12, 2009 12:43 PM

LITIGATION DAILY: Fosamax Plaintiffs Lawyer: Mistrial a 'Shock' to Merck

Posted by Andrew Longstreth

This story was originally published by The Am Law Litigation Daily.

To those tracking the first product liability trial accusing Merck's osteoporosis drug Fosamax of causing debilitating jaw bone deterioration, it should come as no surprise that a mistrial was declared Friday. But the lead plaintiffs lawyer's view of the eight-member jury's failure to reach a verdict may be a bit more eyebrow-raising.

Last Wednesday, after one holdout juror complained of physical threats, Manhattan federal district court judge John Keenan called for a daylong "cooling off period" to ease tensions in the jury room. But the day off Thursday brought the jury no closer to agreement, according to lead plaintiffs counsel Timothy O'Brien of Levin Papantonio Thomas Mitchell Echsner & Proctor.

O'Brien told us that after jurors deliberated Friday morning, Judge Keenan asked the foreperson whether they could come to a unanimous agreement by 5:30. "Absolutely not," the foreperson said, in O'Brien's account. At that point, O'Brien moved for a mistrial. Judge Keenan granted it, over Merck's objections.

This trial was supposed to be a bellwether for the nearly 900 Fosamax cases Merck faces. So what does the mistrial signify for the mass tort? O'Brien told us that the ruling probably came as a "shock" to Merck, given the severe limits Judge Keenan placed on the liability evidence O'Brien could present. (As we previously reported, because O'Brien's client, 71-year-old Shirley Boles, developed jaw problems no later than September 2003, and Merck wasn't put on notice about Fosamax's potential problems until late 2003, Judge Keenan ruled that the jury couldn't consider post-2003 evidence for liability purposes.)

That ruling, O'Brien said, should have given Merck a big advantage because the most damaging evidence against the pharma company came after 2003, when, according to the plaintiffs, the company failed to follow the Food and Drug Administration's recommendations about warnings for Fosamax.

"The jury didn't see the great hits," said O'Brien, adding that most of the other plaintiffs will be able to present evidence that Boles wasn't permitted to put on.

Merck, which was represented in the Boles case by Paul Strain of Venable and Christy Jones of Butler, Snow, O'Mara, Stevens & Cannada, issued a statement contending that most of the jurors sided with the defense. "The plaintiff failed to prove her case before this jury," said Strain. "The jury notes included one presented to Judge Keenan on September 9 signed by seven of the eight jurors, including the jury foreperson, stating that the seven jurors 'agree that there is no evidence of proof that Fosamax caused Mrs. Boles's injury.'"

According to O'Brien, the Boles case will be retried next spring. The next Fosamax trial is scheduled for January.

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