This morning -- Wednesday -- Merck's lawyers filed a motion to keep Mrs. Boles from introducing evidence, in the form of testimony from one of her doctors, that she may need to have a large section of her jaw surgically removed, to "save her life".
She is apparently unable to eat, and is, according to the plaintiff's opening statement "wasting away". The likely next step, according to Mrs. Boles' doctors, is to remove a large section of her rotted, dead jaw bone, and reconstruct her face, so that she will once again be able to consume food orally. [She may be getting some of her nutrition intravenously, at this point -- though the papers don't come out and say so.]
Merck's lawyers claim they were surprised by this possibility, and are trying to preclude the jury from hearing about it:
. . . .In his opening statement, Plaintiff’s counsel indicated that Plaintiff’s treating oral surgeon –- Dr. Charles Elwell -– will testify that Plaintiff is "wasting away" because her jaw condition prevents her from eating, and that unless Plaintiff has part of her jaw surgically removed, "he’s afraid we’re going to lose her" and "she’s not going to survive this". . . .This is not just an isolated or potentially innocent failure to supplement discovery with some technical detail. Given the particular circumstances involved here, Plaintiff can offer no justification for her failure to supplement her PPF or otherwise notify Merck of this material change in circumstance. As the Court is aware, the parties expended significant resources preparing and trying this case just nine months ago. In the interim, it has been a certainty that this case would be retried this year. . . .
If Plaintiff has decided to now claim that Fosamax has resulted in a risk to her well-being that requires a potentially life-saving surgery, she was obligated to notify Merck of that claim by supplementing her PPF or any other appropriate mechanism. She was similarly obligated to notify Merck if she has had discussions with Dr. Elwell about whether Fosamax has resulted in a risk to her life. Plaintiff has had ample opportunity to notify Merck of these facts and her failure to do so should not be excused. Because she did not notify Merck of either of those facts, she should be precluded from offering Dr. Elwell’s proposed testimony that a jaw resection is necessary to save her life. . . .
I'll let you know how Judge Keenan rules.
2 comments:
My guess is that she is would have been likely to be receiving nutrition nasogastricly. The rule is if the gut works use it. Otherwise it becomes much harder to go back from parentaral nutrition to using the gut. I don't know why this should not be working. I imagine that based on the particulars that any injury to her jaw is interfering with the ability to provide nutrition enterally and that ongoing attempts have been made to try to keep using the gut for nutrition without going to IV feedings.
Salmon
As ever, makes sense, Salmon.
Thanks!
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