By Christie Smythe
Law360, New York (June 25, 2010) -- In the first-ever win on jawbone-death claims related to Merck & Co.’s osteoporosis drug Fosamax, jurors awarded $8 million in compensatory damages Friday to bellwether plaintiff Shirley Boles.
Jurors returned a verdict in the U.S. District Court for the Southern District of New York after just a few hours of deliberations, finding the drug to be defectively designed for certain purposes and Merck negligent in failing to address risks associated with the medication.
"This is the world's bravest great-grandmother," Boles' attorney Timothy O'Brien said following the verdict. "She battled Goliath and she won, and a lot of women can learn a lot of things from Shirley Boles."
As one of several bellwethers for a multidistrict litigation, the case will help guide litigation in hundreds of others alleging that Fosamax causes bone death, or osteonecrosis, of the jaw.
The trial is the second to be held in the Boles case after jurors in 2009 became hopelessly deadlocked in contentious discussions, leading Judge John F. Keenan to declare a mistrial.
This time around, Merck again requested a mistrial and is challenging the verdict on the grounds that one of the plaintiff’s lawyers, Gary Douglas of Douglas & London PC, made a variety of improper remarks during his closing arguments, including misconstruing claims at issue and inciting the jury to levy punitive damages.
Judge Keenan denied the motion for a mistrial. He sharply rebuked Douglas, however, saying that, at 80 years old, “I have never heard a more outrageous summation than that in my life.”
“This MDL is in front of me, and we have a few more cases to try so it seems to me that counsel ought to behave themselves,” he said, staring the plaintiff’s lawyers in the eyes after he stepped down from the bench.
Lawyers for Merck said in statements Friday that they disagree with the jury’s verdict, believing it to be improperly influenced by Douglas’ remarks.
“Both the finding and the amount of the compensatory damages are against the weight of the evidence,” said Bruce N. Kuhlik, executive vice president and general counsel of Merck. “We believe the evidence showed that Fosamax did not cause the plaintiff’s injury and that it is a safe and effective medication that was properly designed.”
Following Douglas’ rambling hour-and-a-half-long closing Thursday, in which he displayed a PowerPoint slide with the single word “hypocrisy” and said Merck’s "only goal is to sell more pills,” Merck lawyer Paul F. Strain of Venable LLP called the remarks “not only improper” but “calculated to inflame the jury.”
The judge ordered Douglas to appear before the court in July to consider the possibility of sanctions. O’Brien and Douglas have declined to comment on Merck’s efforts to set aside the verdict or concerns related to the closing arguments.
Boles, a frail and soft-spoken 72-year-old woman from the Florida Panhandle, alleges she developed osteonecrosis after undergoing a tooth extraction while she was on Fosamax, which encouraged infection to run rampant through her jaw when a portion of the bone was exposed.
The drug company argued that it conducted more-than-adequate testing of Fosamax before receiving approvals from the U.S. Food and Drug Administration and had been selling it for years without significant reports of jaw-related complications.
Merck also blamed Boles’ suffering largely on a laundry list of other health problems, including pulmonary and respiratory problems as well as recurrent dental and gum issues, leading to the extraction of nearly all of her teeth well before she started taking Fosamax.
More than 900 cases over alleged jaw complications associated with Fosamax, otherwise known as alendronate sodium, have been consolidated into the MDL before Judge Keenan.
Up to this point, Merck had claimed victories in other bellwether cases, winning a unanimous jury verdict in a suit brought by Louise Maley and securing a dismissal of a case brought by Bessie Flemings in the summary judgment phase.
Lawyers for Flemings have appealed that ruling to the U.S. Court of Appeals for the Second Circuit.
Another bellwether case, brought by Judith Graves, is set to be heard in November.
Boles is represented in this matter by Levin Papantonio Thomas Mitchell Echsner Rafferty & Proctor PA and Douglas & London PC.
Merck is represented in this matter by Venable LLP and Hughes Hubbard & Reed LLP.
The Boles case is Boles v. Merck & Co. Inc., case number 06-cv-09455, in the U.S. District Court for the Southern District of New York.