Separating Hard Fact -- From "Wishful" Fiction -- Fosamax® Post-Trial Edition

There are more than a few reports circulating on the internet this weekend (largely from skittish investors -- concerned about where Merck's stock might open on Monday), that cite an overnight Law360.com article -- to suggest that Judge Keenan will (somehow) summarily set aside last evening's Boles II Fosamax^® jury verdict. These people point to remarks the able judge made from the bench, about the overly aggressive style of one plaintiff-lawyer's summation.

It is important to separate fact -- from wishful fiction, here. Judge Keenan is always in control of his courtroom. If he felt that the summation would unfairly enflame the jury, or unfairly prejudice Merck's rights, he could have (and may well have) instructed the jury to disregard the offending remarks (made in summation), and not take them into account, when deliberating.

Even if Judge Keenan decides to sanction the lawyer involved -- it would be quite another matter to infer that Judge Keenan would rule that the jury's verdict was "against the manifest weight of the evidence" -- and effectively hold that no reasonable jury could have found in favor of Mrs. Boles. That's a very tall order, for Merck.

In fact, Merck made just such a motion (called a Rule 50(a) motion), at the end of the trial, and Judge Keenan effectively denied it -- when he submitted the case to the jury, for deliberations. Just to keep it straight, here.

In short -- even if, months or years from now, Merck gets this verdict reduced on appeal -- it is highly unlikely that Judge Keenan will set aside four weeks of trial work, and a jury's verdict (after one mistrial had already been ordered in September 2009). Doubly so where -- as here -- the able judge had every opportunity to instruct the jury (and even allow Merck to respond in kind). Whatever he did, he did within the sound discretion of a very seasoned federal trial court judge.

Merck faces many very significant hurdles to getting this verdict nullified -- especially in less than a year. Maybe two or three years from now, Merck will get it cut to $5 million or $4 million, but Merck will still have to post a bond to file its appeal.

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^{Note: I have no affiliation, monetary or otherwise, nor any arrangement with any party in any Merck legal proceeding, whatsoever. These are solely my uncompensated, independent personal opinions. That said, they are free, so they are worth what you've paid for them. Heh.}