Brief History Of This ONJ / Jaw Lawsuit: First, Mistrial; Second, Jury Verdict For Plaintiff But Award Reduced By Judge
UPDATE: We have been informed that there will not be a third Boles trial after all because just prior to its start Merck and the attorney for Shirley Boles agreed to a stipulation of damages amount that will be reduced to a judgment in favor of the plaintiff. By agreement, the damages amount is confidential.
In mid-September 2012 there will be another trial in the federal court Fosamax MDL for osteonecrosis of the jaw (ONJ) / jaw injury cases, but this lawsuit is far from being a "new" matter in that drug injury litigation.
On September 18, 2012 the Boles v. Merck & Co., Inc., 06 Civ. 9455 (JFK), case is set for a new jury trial on damages before United States District Court Judge Joseph F. Keenan, who is presiding over IN RE: FOSAMAX PRODUCTS LIABILITY LITIGATION, MDL No. 1789 (Southern District of New York). This is the third time Judge Keenan will being seeing a trial of this particular Fosamax ONJ lawsuit.
In fact, the Boles case was the first Fosamax trial in the federal court Fosamax MDL. It involves Shirley Boles, of Walton Beach, Florida, who used Fosamax from 1997 to 2006 and eventually developed osteonecrosis of the jaw (ONJ), which has been described as jawbone tissue death.
The outcome of that first Boles trial is reported in this September 11, 2009 Reuters article, "Merck lawsuit over Fosamax ends in mistrial":
U.S. District Judge John Keenan declared the mistrial two days [after] giving the New York jury considering the case a "cooling off period" in light of supposed acrimony among jurors.
A Merck lawyer on Wednesday referred to an "unsubstantiated claim" of a chair being thrown in the jury room.
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As for the second Boles v. Merck Fosamax trial, it ended with a jury verdict of $8 million for the plaintiff in June 2010.
However, this result was later changed when Judge Keenan decided to significantly reduce the amount of that jury award against Merck in the second Boles trial while upholding the plaintiff verdict, as reported in this October 5, 2010 Bloomberg article, "Merck Fosamax Verdict Cut to $1.5 Million From $8 Million".
From that October 2010 news report:
Keenan ruled that the $8 million verdict was unreasonably high. He said Boles may choose between a reduced award of $1.5 million or a retrial to determine damages.
“A significant damage award is warranted, but the $8 million deviates substantially from what would be reasonable compensation,” Keenan wrote.
Soon after that reduction of the jury award by Judge Keenan, the attorneys for Shirley Boles informed the court that they would prefer to have a retrial on the damages aspect of the lawsuit as opposed to accepting the $1.5 million.
And that set the stage for "Boles III", as some observers are referring to this third Boles v. Merck trial which is scheduled to start in mid-September 2012.
Of course, we will be monitoring this Boles Fosamax - ONJ trial and report its outcome, here.
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