By Thom Weidlich and Margaret Cronin Fisk
Sept. 11 (Bloomberg) -- A federal judge declared a mistrial in the first case to go to a jury over claims that Merck & Co.’s osteoporosis drug Fosamax causes so-called jaw death after a lone juror refused to exonerate the company.
Jurors in federal court in New York said today a one-day “cooling-off period” brought no agreement, and U.S. District Judge John Keenan ended the trial. On Sept. 9, the holdout juror said she was physically threatened during deliberations.
“I’m declaring a mistrial,” Keenan said. “The jury is excused.”
Merck, based in Whitehouse Station, New Jersey, as of June 30 faced about 900 Fosamax cases, including suits with multiple patients, the company said in an Aug. 3 regulatory filing. About 700 lawsuits have been consolidated before Keenan for evidence gathering.
Keenan scheduled three so-called bellwether trials that may point the way to out-of-court settlements and will show each side the other’s strategy. The plaintiff in the case that ended today is Shirley Boles, 71, of Fort Walton Beach, Florida. The next two trials are set for January and April.
Boles said she developed osteonecrosis of the jaw, or ONJ, in October 2003, before Merck said it had reports of the disease. She asked for $1 million in damages. Keenan ruled out punitive damages in her case.
‘Shock to Merck’
“I think this came as a shock to Merck because of the early injury date,” Timothy O’Brien, one of Boles’s lawyers, said of the mistrial. “I think they thought they could walk through this one.”
O’Brien, of Levin Papantonio Thomas Mitchell Echsner & Proctor PA in Pensacola, Florida, said his team would prepare for a retrial.
“This was the plaintiffs’ handpicked case, their favorite case, to try first, and they couldn’t prove their case,” Paul Strain, a lawyer for Merck, said in an interview. Strain said it was clear from jurors’ notes to the judge and from Keenan’s comments that the jury was split seven to one in Merck’s favor.
“We’re very disappointed the jurors did not complete their deliberations,” said Strain, of Venable LLP in Baltimore.
The trial began with opening statements on Aug. 12. The deliberations, which lasted about 19 hours, were marked by acrimony. On Sept. 9, juror Theresa Ciccone said she was threatened by fellow members of the eight-person panel.
‘Intimidated, Threatened’
“I am being intimidated, threatened, screamed at as well as verbally insulted that I am stupid because I do not agree,” Ciccone, Juror No. 5, said in a note to the judge made public today. “I have had 2 physical threats against me -- a chair thrown -- and a verbal threat to beat me up.”
Keenan gave the panel yesterday off, saying disagreements among jurors aren’t unusual. “I’m going to give you what we call a cooling-off period,” he said.
The judge on Sept. 9 rejected Boles’s motion for a mistrial based on “juror intimidation,” and also Merck’s motion to have Ciccone dismissed. Keenan rejected a renewed mistrial motion today. He then called the jury into the courtroom and asked the forewoman, Iris Lizardi, if she thought there was any chance of a verdict.
“Not at all,” Lizardi replied.
The judge then allowed O’Brien to renew his mistrial motion, which Strain opposed, and granted it.
The Fosamax plaintiffs claim Merck misrepresented the drug’s safety and failed to warn doctors and patients that it might hamper blood flow to the jaw, causing jawbone-tissue death.
Lawyer Affidavits
During closing arguments, O’Brien told jurors that Boles must sleep with a towel near her jaw because puss oozes from it. Strain told them there’s no scientific evidence that Fosamax causes ONJ.
Boles is a retired deputy from the Okaloosa County Sheriff’s Office whose doctor prescribed Fosamax because of a stress fracture in her foot, she testified. She eventually developed problems in her mouth, she said.
Before and after the mistrial, Keenan told O’Brien he was upset about affidavits the lawyer filed today from lawyers on his team. The statements said they heard shouting from the jury room on Sept. 2, the first day of deliberations, and then on Sept. 4, the second day, saw a chair with a broken arm outside the courtroom. One or more court officers and marshals told them the chair had been removed from the room where the jury was deliberating.
A court officer told Keenan on Sept. 9 the broken chair was there at the start of deliberations that day. The judge told O’Brien the allegation that the chair was broken during deliberations Sept. 9 was “sheer nonsense.”
‘Trying to Sandbag Me’
“The reason I’m upset, Mr. O’Brien, is I feel that you tried to sandbag me,” the judge said.
O’Brien denied that, saying Ciccone’s note didn’t say when the chair was thrown. He said in an interview that he only wanted to bring to the judge’s attention how the chair was broken.
“The allegations of threats to her were completely unsubstantiated and the judge directly rejected the lawyer affidavits that attempted to provide support for the claim of physical threats,” Strain said in the interview. “What is clear from the jury notes is that one juror was not following the judge’s instructions.”
On Sept. 9, the seven other jurors sent Keenan a note that said of Ciccone, “The juror feels that they have found evidence that supports their view about the risks of Fosamax but has found no evidence of proof that Fosamax caused her injury. They agree that there is no evidence of proof that Fosamax caused Mrs. Boles injury.”
‘Timely Information’
“We will be prepared to defend this case again if a retrial is scheduled,” Bruce N. Kuhlik, Merck’s general counsel, said in a statement. “We continue to believe that the company provided appropriate and timely information about Fosamax to consumers and to the medical, scientific and regulatory communities.”
Sales of Fosamax last year, when it first faced U.S. generic competition, fell by half to $1.55 billion from $3.05 billion in 2007. Sales dropped 44 percent to $261.3 million in this year’s first quarter, Merck reported.
Merck rose 58 cents to $32.54 in New York Stock Exchange composite trading.
The case is Boles v. Merck & Co., 06-cv-9455, and the lawsuits are combined in In Re Fosamax Products Liability Litigation, MDL 1789, U.S. District Court, Southern District of New York (Manhattan).
To contact the reporters on this story: Thom Weidlich in New York federal court at tweidlich@bloomberg.net; Margaret Cronin Fisk in Southfield, Michigan, at mcfisk@bloomberg.net.
Last Updated: September 11, 2009 17:28 EDT