Tuesday, September 8, 2009

Nine Hours of Deliberations? -- Not Very Long, Really. . . .


In complex, highly-regulated drug or device cases, when products liability is in play, causation is often a mixed and muddied affair. Were I a betting man, tonight, I'd bet the jury is having trouble agreeing on how to view causation, here. [Fosamax® jury trial backgrounder, here, and here.]

That said, nine hours of deliberations is actually a short period of time for the jury -- in such a case -- to be "out". I'll go out on a limb here, and say what other trial lawyers are likely thinking: If Merck chose this case as the first one to posture for trial, Merck must have thought it was one of the best cases for avoiding findings of liability.

That is, Merck must have viewed this as a "winnable" case -- else, it wouldn't have agreed to try this one, as the first of three bellweather cases.

That the jury is still out, must thus be rather disappointing news -- for Merck.

I'll go more than a little way beyond out on a limb, here -- and guess that a deadlocked jury/mistrial is rather unlikely, as well. Judge Keenan will be patient but firm with the jurors -- and will be willing to explain the instructions, the verdict form, and even his rulings to them, if need be. But I suspect this jury will eventually come to a verdict. And given that a clear easy win is no longer in the cards, for Merck, on at least these Fosamax facts -- I'd look for a stock price decline, tomorrow. There are, by some counts, 1,200 potential cases (or so some of the plaintiffs' lawyers say; Merck claims the number is more like 900 cases) out there, pending -- or yet to be filed. In any event, here is a snippet from the Bloomberg story, as filed tonight:

. . . .U.S. District Judge John Keenan in Manhattan told the jurors to keep working today. He explained that the case is important to both the plaintiff and Merck. The jurors got the case Sept 2.

. . . . [There were] four [juror's] notes to Keenan today about the lack of unanimity among the eight-member panel. . . .

Stay-tuned.

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