$8M Fosamax Verdict Remitted By MDL Judge To $1.5M Or New Damages Trial

$8M Fosamax Verdict Remitted By MDL Judge To $1.5M Or New Damages Trial

NEW YORK -- (Mealey's) The New York federal judge overseeing the Fosamax multidistrict litigation on Oct. 4 sua sponte found that an $8 million verdict in a bellwether trial is excessive and ordered a remittitur of the verdict to $1.5 million unless plaintiff Shirley Boles wants a new trial on damages alone (In Re:  Fosamax Products Liability Litigation, MDL Docket No. 1789, No. 06-md-1789, Shirley Boles v. Merck & Co., Inc., No. 06-9455-JFK).

On June 25, a jury in the U.S. District Court for the Southern District of New York, where the Fosamax MDL is assigned, awarded Boles $8 million after finding that the bisphosphonate osteoporosis drug caused the plaintiff's osteonecrosis of the jaw (ONJ) and that manufacturer defendant Merck & Co. was liable for design defect and strict liability for defective design.  Merck moved for judgment notwithstanding verdict (JNOV) or a new trial.

After denying a new trial or JNOV, Judge John F. Keenan said the $8 million award was "unreasonably high" but said it was not due to a summation by Boles' counsel but was more likely the result of "a jury out of touch with the amount of money that would reasonably compensate Plaintiff for her injuries, than a jury seeking to punish Merck."

The judge said that because he cannot "point definitively to anything in the record that caused the surplus [verdict]," a remittitur is appropriate.  Since Boles is a Florida resident, Judge Keenan applied Florida law but said that verdicts from that state are not helpful because while there have been some high verdicts in drug injury cases, some verdicts have also been reduced.

Since Boles did not introduce any evidence about her medical expenses, the judge said "economic damages are not at play."  Reviewing Boles' medical record about her ONJ, Judge Keenan said, "A significant damage award is warranted, but $8 million deviates substantially from what would be reasonable compensation."

In an Oct. 4 statement, Merck said it will appeal Judge Keenan's ruling.

In a related ruling, Judge Keenan sanctioned one of Boles' attorneys, Gary Douglas of Douglas & London in New York, $2,500 for failure to comply with the judge's trial ruling excluding punitive damages.  The judge said his "relatively light sanction" takes into account 14 letters submitted in support of Douglas, some of them from courtroom adversaries.

The judge said the monetary sanction "is sufficient, but no greater than necessary, to reflect the seriousness of his conduct and it will promote his respect for the legal process."

[Editor's Note:  Full coverage will be in the Oct. 7 issue of Mealey's Emerging Drugs & Devices.  In the meantime, the documents are available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844.  Remittitur ruling. Document #28-101007-054Z.  Sanctions opinion. Document #28-101007-055Z.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

For more information, call editor Tom Moylan at 610-205-1120, or e-mail him at tom.moylan@lexisnexis.com.