Fosamax® Jury Back -- Deliberating This Morning. . . .

The jurors (for probably the last time, today) will attempt to reach a verdict, and complete the work they were charged with, related to Merck's Fosamax^®, and claims of its exacerbation of ONJ, in Shirley Boles' case.

The famous Juror No. 5 note (if any of this is accurately-relayed, a mistrial is a near certainty) -- now confirmed -- per Peter Loftus, at the WSJ:

. . . .A judge declared a mistrial Friday in a closely watched case involving Merck & Co.'s (MRK) osteoporosis drug Fosamax after a jury failed to reach a verdict amid tense jury deliberations.

The mistrial came two days after U.S. District Judge John F. Keenan in Manhattan called for a daylong "cooling off" period as one juror claimed in a note to have been the subject of physical threats and that a chair was thrown in the jury room.

The judge declared a mistrial Friday after the jury's forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, again asked for a mistrial. Merck opposed the mistrial motion.

Paul F. Strain, a lawyer for Merck, said the drug maker intends to file a motion in the next few weeks asking the judge to rule in favor of Merck and dismiss the Boles case.

"We regret very much the jury did not continue their deliberations," Strain said. The jury appeared to be "seven-to-one in Merck's favor," he said.

"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."

Timothy O'Brien, a lawyer for Boles, said he expects the Boles case would likely be retried in the spring. A conference has been scheduled for October.

"For Mrs. Boles, we're going to refine her message, focus a little more on the evidence we have, so we don't have a three- or four-week trial," O'Brien said.

The five-woman, three-man jury began deliberations last week, but first sent out notes on Tuesday indicating they were at an impasse and couldn't come to a consensus on whether Fosamax caused a severe jaw condition, known as osteonecrosis, suffered by Boles. . . . .