Fosamax® Judge Keenan: "The court intends to retry this case. . . ."

Well, this is about as clear a message as any you'll ever see, in a federal Disrtict Court order -- the very-able Judge John F. Keenan, you'll recall, presided over a Fosamax^® mistrial, last month -- due primarily to a jury deadlock (apparently the result of rampant, and substantiated allegations of various jurors' misconduct during those deliberations), in the first of several "bellweather" -- or test case -- trials, about whether long-term use of Merck's Fosamax contributes to bone death (rather than helping to reduce osteoporosis -- in women). In this particular case, the concern was jaw-bone death; in others, hip-socket and femur necrosis have been alleged to be the result of longer-term Fosamax use.

In any event, here is the relevant bit of Judge Keenan's order (emphasis supplied; more background under the Juror No. 5 note, imaged at right):

. . . .As for the second request, it would be fruitless for Plaintiff to file the motion. The Court intends to retry this case. . . .

SO ORDERED

Dated: New York, New York
October 7, 2009

/s/ John F. Keenan
United States District Judge

What this means is that unless the parties settle, the judge intends to keep the trial in Manhattan's federal District Court (not likely to occur before the Spring of 2010, due to the full-docket), empanel a new jury, and re-try this case. All in all, a complete "do-over". Presumably, this time, there will be additional (clarifying) instructions to the jury -- about what is, and is not permissable conduct in deliberations. In any event, the next two bellweather trials are already docketed -- for December 2009, and January 2010. So, stay-tuned.