Merck & Co., Inc. today said it will appeal a decision by the U.S. District Court for the Southern District of New York that reduced the jury verdict from $8 million to $1.5 million but denied Merck's request for judgment in its favor or a new trial in the case of Boles v. Merck, a retrial of a federal FOSAMAX case.
“We disagree with the jury's verdict and will vigorously defend against plaintiff's claims on appeal. We believe the verdict was contrary to the evidence presented at trial and influenced by plaintiff's counsel's inflammatory and prejudicial remarks”
Following a three-week trial in June 2010, a jury returned a verdict in favor of a Florida woman who blamed her dental and jaw problems on FOSAMAX. The case was the Plaintiff Steering Committee's top choice to take to trial. The first case to reach a verdict, Maley v. Merck, resulted in a defense verdict for Merck on May 5, 2010.
"We disagree with the jury's verdict and will vigorously defend against plaintiff's claims on appeal. We believe the verdict was contrary to the evidence presented at trial and influenced by plaintiff's counsel's inflammatory and prejudicial remarks," said Paul Strain of Venable LLP, outside counsel for Merck. "The plaintiff was at increased risk for dental and jaw problems regardless of her FOSAMAX use."
The plaintiff in this case alleged she used FOSAMAX from 1997 to 2006 and that she suffered various jaw problems and complications following two tooth extractions in June 2002, including a several-day hospitalization in 2004 to treat her condition.
During the trial, Merck produced evidence showing that the plaintiff had medical problems that cause people to develop jaw problems, regardless of whether they were taking FOSAMAX. 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.
In addition, Merck presented evidence that it acted responsibly in researching and developing FOSAMAX and in monitoring the medicine since it has been on the market. The company's clinical trials, conducted both before and following approval, have involved more than 28,000 patients, including more than 17,000 treated with FOSAMAX.
Merck also presented evidence that it provided appropriate and timely information about FOSAMAX to the medical, scientific and regulatory communities and to consumers.
"We continue to believe that both the finding and the amount of compensatory damages are against the weight of the evidence," said Bruce N. Kuhlik, executive vice president and general counsel of Merck. "We also 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. While this is not the outcome that we hoped for at the trial court level, we will vigorously pursue an appeal in this matter and we remain fully committed to defending these cases."
Judge John F. Keenan presided over the trial. Merck is represented by Paul Strain and Stephen Marshall of Venable LLP, Baltimore, Md.
Status of Litigation
The first case to be tried, Maley v. Merck, resulted in a defense verdict for Merck on May 5, 2010. As of June 30, 2010, approximately 1,092 cases, which include approximately 1,470 plaintiff groups, had been filed and were pending against Merck in either federal or state court. The next federal multidistrict litigation case selected for trial, Graves v. Merck, is scheduled to begin on Oct. 28, 2010.