The Boles II Fosamax® ONJ "bellweather" trial continues today in Manhattan. Merck is about to put on its defense of Fosamax. It will argue that the ONJ injuries Mrs. Boles claims were at least partially a result of longer term Fosamax use, were not foreseeable at the time she was injured. That is, Merck could not have known that ONJ would be a likely outcome, back in the early part of the New Millennium. To rebut this notion, the lawyers for Mrs. Boles are pointing to the testimony of a dental surgeon, one Dr. Kimmel, apparently a Merck employee, but one Merck will not call as a witness at trial. Lucky for Mrs. Boles, though, Dr. Kimmel's deposition was taken in advance of trial by the plaintiffs -- from Mrs. Boles' memorandum of law (filed this morning) in opposition to this Merck motion:
. . . .Donald Kimmel [is] a doctor of dental surgery, and bone biologist [and a full-time employee of] Merck. . . .
See page 5 of that memo, below -- and note that Dr. Kimmel has admitted that Fosamax impedes bone turnover -- and has done so, far back in time (click to enlarge):
And so, it seems likely that Judge Keenan could rule that there is at least some evidence that Mrs. Boles' ONJ injuries could have been foreseeable, by Merck -- and thus, the jury should, at a minimum, be allowed to consider whether Merck's Fosamax procuct design was negligent, from the go (or suffered from design defects, in products liability language), and thus Merck could be found (at least partially) responsible, in damages, in this suit. We shall see.
No comments:
Post a Comment