Judge cuts jury award to $1.5M in Fosamax jaw-damage case; Merck still wants new trial

Monday, October 4, 2010

Merck seeks to overturn reduced Fosamax verdict

TRENTON, N.J. — Merck & Co. said Monday it will seek a new trial or a ruling in its favor even after a federal judge slashed the jury verdict against the drugmaker in the case of a woman alleging Merck’s osteoporosis medicine Fosamax severely damaged her jaw.

Last June, a New York jury awarded $8 million to Shirley Boles, a 72-year-old great-grandmother from Fort Walton, Fla. On Monday, the judge shaved that to $1.5 million.

Boles is among roughly 1,500 plaintiffs who have filed or given notice of planned lawsuits against Merck in federal or state courts alleging harm from Fosamax. They say it caused damage to the jaw bone, teeth or the trigeminal nerve, which controls sensation and some movement in the face.

Fosamax, a pioneering treatment for osteoporosis, was a multibillion-dollar blockbuster for Merck until it got generic competition in February 2008. The company, based in Whitehouse Station, N.J., is developing a successor drug.

Boles, a retired sheriff’s deputy in Oskaloosa County, Fla., took Fosamax from about 1997 through 2006. She suffered repeated jaw problems and complications after two tooth extractions in 2002.

Her lawyer presented evidence that the woman’s decayed jaw bone drains through sores in her chin and she can no longer eat any food that requires chewing.

The $8 million jury award followed a three-week trial. It was the second trial for Boles, because the first ended in a mistrial.

Merck filed motions to overturn the verdict. On Monday, the judge overseeing the trial, U.S. District Judge John F. Keenan, reduced the award to $1.5 million. Merck had asked Keenan for a judgment in its favor or a new trial, a request he rejected.

“We believe the verdict was contrary to the evidence presented at trial and influenced by plaintiff’s counsel’s inflammatory and prejudicial remarks,” Paul Strain, Merck’s outside counsel, said in a statement.

Boles’ attorney, Timothy O’Brien, told The Associated Press that Merck’s motion could drag the case out for another year or two.

O’Brien said that he wasn’t surprised by the appeal but that Merck has no valid grounds for appeal.

“The jury … found Fosamax did this to Shirley and it has messed her up for the rest of her life,” he said.

A separate trial involving a patient claiming damage to the trigeminal nerve ended with a verdict for Merck on May 5. The next case going to trial in the federal litigation is to begin Oct. 28.

After several cases have been tried, Merck and lawyers for the plaintiffs could try to reach a settlement. Merck initially went through trials of more than a dozen lawsuits over whether its withdrawn painkiller Vioxx caused heart attacks and strokes, but eventually reached a $4.85 billion settlement to end about 50,000 such U.S. lawsuits.

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