Merck's Proposed Fosamax® Jury Verdict Form. . . .

While we wait for the jury to complete its work, I'll set this verdict form (filed September 1, 2009, by Merck's lawyers). I strongly suspect the strikeout in Question 1 is Judge Keenan's modification -- and that this form was then submitted to the jury. Take a look at it -- in its entirety:

MERCK'S PROPOSED VERDICT FORM

Section I. Causation Question Applicable To All Claims

1. Has Plaintiff proven by the greater weight of the evidence that she had BON ONJ prior to October 1, 2003, AND, if so, that Fosamax directly produced or directly and substantially contributed to her injury?

__YES __NO

If your answer to this question is no, then you should inform the Court oficer that you are done. If your answer this question is yes, you should proceed to Section II.

Section II. Negligent and Strict Liability Failure to Warn

2. Has Plaintiff proven by the greater weight of the evidence that Merck knew or should have known before October 1, 2003 that Fosamax causes BON, AND, if so, that Merck should have warned Plaintiff's prescribing physician Dr. Mills before October 1, 2003 that Fosamax causes BON?

__ YES __ NO

3. Has Plaintiff proven by the greater weight of the evidence that Fosmax causes BON and that this was known or knowable by Merck in light of the generally recognized and prevailing best scientific and medical knowledge before October 1, 2003, AND, if so, that the failure to provide this warning to Dr. Mills made Fosamax unreasonably
dangerous?

__ YES __ NO

If you answered yes to either question 2 or 3, proceed to question 4. If you answered no to both questions 2 and 3, then you should proceed to Section III.

4. Has Plaintiff proven by the greater weight of the evidence that Fosamax causes BON AND, if so, that Plaintiffs physician Dr. Mills would not have prescribed Fosamax to Plaintiff before October 1, 2003 if Merck had warned him that Fosamax causes BON?

__ YES __ NO

Proceed to Section III.

Section III. Strict Liability Design Defect

5. Has Plaintiff proven by the greater weight of the evidence that Fosamax causes BON and that this was known before October 1, 2003, AND, if so, that the design of Fosamax was unreasonably dangerous at the time Dr. Mills prescribed it to Plaintiff because the known risks of BON outweighed the benefits of Fosamax?

__ YES __ NO

If your answer to questions 2, 3 and 5 are no, or if your answer to questions 4 and 5 are no, the foreman should sign and date the verdict form and inform the Court Officer. If your answer to either:

(a) questions 2, or 3 and 4 is yes; or

(b) your answer to question 5 is yes,

then you should proceed to Section IV.

Section IV. Damages

You should answer the questions in this section ONLY if you answered yes to either questions 2 or 3 and 4 or question 5.

6. What amount, if any, will fairly and adequately compensate Plaintiff for her pain and suffering related to her injury?

$ _____________

7. What percentage, if any, of Plaintiffs damages are attributable to Merck's conduct as opposed to other factors?

____%