Jury Award of $8M in Fosamax Suit Reduced to $1.5M by Judge

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By: Staff Writers | Published: October 5th, 2010

A federal judge has reduced a jury’s award of $8 million in a recently decided Fosamax lawsuit to $1.5 million, deeming the damages awarded to be excessive. The plaintiff must now decide whether to accept the reduced award or move forward with a new trial on the issue of damages.

In an order issued Monday, U.S. District Judge John F. Keenan denied Merck’s attempt to have the entire verdict thrown out in a case filed by plaintiff Shirley Boles, and instead issued a remittitur. Merck argued for a new trial based on the behavior of the plaintiffs’ attorneys during trial, but Judge Keenan said that Merck exaggerated the attorneys’ actions in their motion and denied their request. However, one of the plaintiff’s attorneys was sanctioned for his actions during trial and order the attorney to pay a $2,500 fine.

In the case, Boles alleged that she developed osteonecrosis of the jaw from Fosamax after using the osteoporosis drug for several years. The painful and disfiguring jaw condition resulted in decay of her jaw bone, causing severe pain and infection. According to Boles’ doctors, she is likely to require jaw surgery to remove sections of the jaw.

“A significant damage award is warranted, but $8 million deviates substantially from what would be reasonable compensation,” wrote Judge Keenan in a 53 page opinion.

The damage award was reduced to $1,500,000, and Boles was given the option to reject the verdict and receive a new trial. Boles must notify the court by October 25 whether she accepts the reduced verdict or chooses to move forward with a re-trial where the jury will only consider the amount of damages that should be awarded

If Boles decides to move forward with another trial, it will be the third jury to consider her case. The Fosamax case was originally submitted to a jury in September 2009, but ended in a mistrial after members of the jury failed to agree on a verdict. The Fosamax trial that ended with the $8 million verdict in June was a retrial of that case.

In addition to reducing the jury verdict, Judge Keenan also sanctioned one of Boles’ attorneys for what he described as overblown antics that sometimes bordered on manic. The attorney was contemptuous and insulting to defense witnesses, misrepresented evidence during closing statements, according to Keenan’s judgment. The attorney also attempted to convince the jury that Merck was guilty of a failure to warn dentists and doctors of ONJ, even though the failure to warn charges had been thrown out by the court, Keenan ruled. Keenan said the attorney also made comments in his closing arguments that were intended to get the jury to punish Merck, despite the court’s decision not to allow punitive damages.

Merck faces about 1,000 other Fosamax sits that involve similar allegations that users of the drug suffered jaw damage. All federal cases are consolidated before Judge Keenan in the U.S. District Court for the Southern District of New York as part of an MDL, or multidistrict litigation.

Boles’ lawsuit is one of the Fosamax bellwether cases selected for an early trial to help give the parties an idea of how juries will respond to evidence that may be similar to what will be presented in other cases. Such trials are often useful in gauging the strengths and weaknesses of common claims in complex litigation, and could help lead to an eventual Fosamax settlement.

In May, the second Fosamax bellwether case, involving a claim filed by Louise H. Maley, ended in a defense verdict for Merck after the jury determined that the plaintiff did not suffer osteonecrosis of the jaw from Fosamax. That jury agreed with Merck’s position that multiple medical conditions suffered by Maley could have caused her jaw and dental problems, so they never considered whether the drug maker failed to adequately warn about the risk of Fosamax jaw problems.

The third bellwether case in the Fosamax litigation is scheduled to go to trial next month. Judge Keenan has also scheduled a fourth case for trial in March 2011 and a fifth case for trial in May 2011. Following the trial of five bellwether Fosamax suits, if the parties are unable to reach an agreement to resolve the litigation, Judge Keenan may begin remanding cases back to the districts where they were filed for individual trials.

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