Saturday, August 22, 2009

Update on Merck's First Fosamax® Trial -- From Manhattan's federal District Courthouse

About ten days ago, the first products liability trial (backgrounder, there) releated to Merck's Fosamax® got underway. The plaintiff alleges that Fosamax was the proximate cause of the bone-death in her jaw. Merck points to medical problems the plaintiff had with her teeth, gums and jaw (allegedly prior to her use of Fosamax). A jury was empaneled, and the plaintiff put on her case in chief. She has now rested. That means she has offered all the direct evidence she intends to, to show her injuries were proximately caused by taking Fosamax. Predictably, Merck's lawyers moved for judgment as a matter of law, yesterday afternoon:

. . . .Filed: August 21, 2009

MOTION for Judgment as a Matter of Law.

Document filed by Merck & Co., Inc. . . .
(Attachments: # (1) Certificate of Service)(Beausoleil, William). . . .

The court will likely rule on that motion, on Monday. Then, either one of two things will happen: (1) the trial will continue, if the judge believes that a reasonable jury could find, based on all the evidence the plaintiff offered, that Fosamax proximately caused the injuries she complains about.

On the other hand, (2) if the judge decides that the plaintiff offered so little evidence, that it would be impossible, as a matter of the correct application of the law, for the jury to return a verdict in her favor, he will dismiss the case, without Merck even having to mount any defense.

Those latter sorts of decisions (alternative (2), above) are exceedingly rare. I will let you know, by Monday afternoon, in all likelihood, whether the trial will continue, and Merck will need to mount a defense, or whether the trial is over -- and Merck has won.

In either case, not too much should be "read into" this one motion result. A win for Merck would simply suggest that this particular plaintiff had pre-existing problems that overwhelmed any alleged Fosamax affects on her jaw. And if the plaintiff prevails on the motion -- Merck simply must put on a defense. Merck will then try to show that the plaintiff's injuries are not supported by enough evidence to make it "more likely than not" that her bone death was proximately caused by Fosamax.

Stay tuned, on Monday. I rather expect the trial will continue, and Merck will begin its defense, in earnest.

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