Merck Jury Told To Keep Deliberating in Fosamax Case

By Thom Weidlich and Margaret Cronin Fisk

Sept. 8 (Bloomberg) -- A federal judge instructed a jury to continue deliberating whether Merck & Co.'s osteoporosis drug Fosamax caused a Florida woman's "jaw death," after the panel told the judge it couldn't decide.

U.S. District Judge John Keenan in Manhattan told the jurors to keep working today. He explained that the case is important to both the plaintiff and Merck. The jurors got the case Sept 2. They've deliberated about nine hours since then. The trial started with jury selection Aug. 11.

"It's very stressful to sit here and an agreement cannot be reached," a juror wrote in one of four notes to Keenan today about the lack of unanimity among the eight-member panel. "I feel that we never will reach a verdict because everyone has a different opinion."

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. The trial is the first of three so-called bellwether trials that may point the way to out-of-court settlements and show each side the other's strategy.

Osteonecrosis

Shirley Boles, 71, of Fort Walton Beach, Florida, said she used the drug from 1997 to 2006 and by September 2003 developed jawbone death, called osteonecrosis of the jaw, or ONJ. Boles's lawyers asked the jury for at least $1 million. Keenan has ruled out punitive damages in her case.

Jacqueline Emerson, a Merck spokeswoman, declined to comment about today's instruction to the jury. Boles's attorney, Timothy O'Brien, also declined to comment.

After Keenan's instruction, the jury worked for 3 1/2 more hours and then went home for the day. They are scheduled to return tomorrow.

Fosamax plaintiffs say Merck, the U.S. drugmaker buying Schering-Plough Corp., misrepresented the drug's safety and failed to warn doctors and patients that it might hamper blood flow to the jaw, which causes jawbone-tissue death. They also accuse Merck of failing to include an adequate warning about Fosamax's risks when the label was changed in 2005.

Fosamax, available in pill or liquid form, is part of a group of medicines known as bisphosphonates.

Sales Fall

Sales of the drug 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.

Federal court trials are scheduled for January and April, according to a Sept. 2 order from Keenan. A trial is scheduled in Alabama state court later this year, according to Merck.

About 140 other Fosamax cases are before Judge Carol Higbee in state court in Atlantic City, New Jersey, Merck said.

The federal 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 at tweidlich@bloomberg.net; Margaret Cronin Fisk in Southfield, Michigan, at mcfisk@bloomberg.net.

Last Updated: September 8, 2009 17:12 EDT