Despite Merck's repeated motions to the contrary, Shilrey Boles will be allowed to retry her Fosamax® injury and design defect claims. [Her first trial ended in a mistrial on September 11, 2009, after allegations of severe juror misconduct surfaced.] She will not be allowed, however, to retry her failure to warn claims, due to some peculiarities that arise under Florida law (the state in which she resides, and thus the state law that governs her case). That same peculiarity is not likely to reappear in many other states.
So, Boles will be a "bellweather" case for design defect claims, but will not reach any issue surrounding Merck's alleged failure to warn about the ONJ dangers of prolonged Fosamax use. Those sorts of warning claims will be tried in at least three of the other four "bellweather" Fosamax cases.
Here is the operative portion of Judge Keenan's opinion and order, entered March 26, 2010:
. . . .Even if Merck is correct that the lack of such evidence is an appropriate basis for the Court to dismiss all of Plaintiff’s claims, its motion is denied with respect to this issue because a reasonable jury could find that Plaintiff developed her injury before October 2003. Plaintiff’s medical records indicate that her jaw problems have been fairly continuous since August 2002, when she first began having jaw complications following a tooth extraction. Records from August 2002 indicate that Plaintiff had an ulcer and swelling in the area of extraction, which also generally evidenced delayed healing. . . .Also, a radiograph taken before October 2003 showed her jaw as having a “moth-eaten” appearance, which is consistent with necrosis. (Id. at 739.) Based on her records, Dr. Hellstein opined that Plaintiff’s jaw injury began as stage zero ONJ in August 2002 and progressively worsened to stage three ONJ. (Id. at 625-26, 735.) Accordingly, Merck’s motion for judgment as a matter of law is denied with respect to this timing issue. . . .
Even before the Boles retrial this summer, another bellweather trial (applying Alabama law) is currently scheduled to begin on May 3, 2010. Moreover, as of February 1, 2010, Judge Keenan selected a new bellwether case — Judith Graves v. Merck — to replace the Flemings bellwether case, which the MDL court dismissed when it granted summary judgment in favor of Old Merck. The MDL court has set the Graves trial to begin on September 13, 2010. The Boles re-trial in Florida is currently scheduled to begin on June 21, 2010. I'll keep you posted.
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