NEW YORK - (Mealey's) A jury returned an $8 million compensatory damages verdict against Merck & Co. Inc. on June 25 in the U.S. District Court for the Southern District of New York in the retrial of the first Fosamax multidistrict litigation case to go to trial, according to the court's docket (In Re: Fosamax Products Liability Litigation, MDL Docket No. 1789, No. 06-md-1789, Shirley Boles v. Merck & Co., Inc., No. 06-9455, S.D. N.Y.).
Shirley Boles, 72, of Walton Beach, Fla., says she took Fosamax from 1997 to 2006 for osteoporosis and developed osteonecrosis of the jaw (ONJ) as a result. She sued manufacturer Merck, and her case was transferred into the MDL, where it was chosen as the first bellwether trial.
A jury deadlocked on Sept. 11, 2009, and a mistrial was declared. Judge John F. Keenan scheduled the case for retrial.
For the second trial, Boles' only claims were for negligent design defect and strict liability for defective design. Her claims of failure to warn, fraudulent misrepresentation and concealment and breach of express and implied warranty were dismissed voluntarily or by the court.
According to pretrial filings, Boles argued that it was reasonably foreseeable by Merck that Fosamax would cause ONJ, that Merck failed to sufficiently monitor post-marketing adverse event data, that it made misrepresentations about ONJ and that it did not attempt to study the risk of Fosamax.
In announcing its intention to appeal the verdict, Merck said Boles' smoking history and "long-standing" periodontal problems predating her use of Fosamax contributed to her ONJ. Merck noted that the year before she started Fosamax, Boles had lost all but five of her teeth.
The second federal Fosamax bellwether trial ended in a defense verdict on May 5 when a jury in the same court unanimously found that the plaintiff did not suffer from ONJ as of March 31, 2004, a date when Merck should have known of the risk and warned doctors and patients about it (In Re: Fosamax Products Liability Litigation, MDL Docket No. 1789, No. 06-md-1789, Louise Maley v. Merck & Co., Inc., No. 06-4110, S.D. N.Y.).
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