Sep 14 2009
Merck & Co., Inc. said today that a mistrial was declared by U.S. District Court Judge John F. Keenan in Boles v. Merck, the first FOSAMAX case to go to trial. This case was the Plaintiffs’ Steering Committee's first choice to take to trial. The Boles case was tried in New York federal court and involved a Florida woman who blamed her dental and jaw problems on FOSAMAX. After several days of deliberations by an eight person jury, Judge Keenan declared a mistrial because the jury did not reach a unanimous verdict.
“The plaintiff failed to prove her case before this jury," said Paul Strain of Venable LLP, outside counsel for Merck. "The jury notes included one presented to Judge Keenan on Sept. 9 signed by seven of the eight jurors, including the jury foreperson, stating that the seven jurors 'agree that there is no evidence of proof that FOSAMAX caused Mrs. Boles injury'."
At trial, Merck presented evidence that it acted responsibly and that FOSAMAX was not the cause of Shirley Boles’ dental and jaw problems. “Unfortunately, Ms. Boles had medical problems that cause people to develop jaw problems, regardless of whether they were taking FOSAMAX,” said Mr. Strain. “She had significant periodontal disease and a history of smoking up to a pack of cigarettes a day, which can result in poor wound healing. The plaintiff would have experienced dental and jaw-related problems whether she took FOSAMAX or not.”
“We will be prepared to defend this case again if a retrial is scheduled,” said Bruce N. Kuhlik, executive vice president and general counsel of Merck. “We continue to believe that the company provided appropriate and timely information about FOSAMAX to consumers and to the medical, scientific and regulatory communities.”
Merck is represented in the Boles case by Paul Strain, Venable LLP in Baltimore, MD, and Christy D. Jones of Butler, Snow, O'Mara, Steves & Cannada, PLLC, Jackson, MS.
Status of Litigation
This is the first FOSAMAX case to go to trial. As of June 30, 2009, approximately 899 cases, which include approximately 1,280 plaintiff groups, had been filed and were pending against Merck in either federal or state court.