Did Merck Just Create Its Own "Sinkhole," In The Boles II Fosamax® Trial?

This afternoon, the trial lawyers for Shirley Boles have asked the very able Manhattan federal District Court Judge Keenan to instruct the jury on a peculiar wrinkle in Florida medical malpractice law (the state law that governs Mrs. Boles' claims, as she resided there when the injuries occured), here toward the end of Merck's defense case.

It seems that, during Merck's opening arguments, its lawyers argued -- in part -- that Mrs. Boles' injuries are more likely the result of an oral surgeon's subsequent alleged mistakes, as opposed to Mrs. Boles' prolonged use of Merck's Fosamax^®.

Well, that effectively "opened the door", to a whole line of analysis, by the jury -- about whether, and to what extent (on a percentage basis), Merck should remain liable, even for the allegedly aggravated injuries Mrs. Boles suffered -- if the jury finds that the prolonged use of Fosamax was at least one "substantial" cause. Here is a portion of the proposed 15 page jury charge the plaintiff is asking Judge Keenan to hand the jury, on the topic (click to enlarge):



We are now approaching the moment when this case will be given over to the jury -- and I'll keep you informed -- of any verdict, up or down.