Boles II Fosamax® ONJ Verdict Stands, As Modified -- No Third Boles Trial -- Reduced To $1.5 Million

Judge John F. Keenan is a great and wise federal jurist. He has done exactly what I predicted he would, back on June 26, 2010 -- the night after the verdict was entered. There will be no new trial -- no third Boles trial. The damages have been reduced to $1.5 million, (full 53 page, 408 Kb PDF here). Now Merck will appeal. But it will have to pay a bond, and the reduced verdict, in order to do so. Let's listen in on Judge Keenan's analysis (see his related opinion, on conduct of counsel, here):

. . . .The Court in no way condones the[plaintiff counsel's] “outrageous” conduct at trial. Nevertheless, viewing [plaintiff counsel's] behavior in the context of the trial as a whole, a new trial is not warranted. As the Court described above in denying Merck’s Rule 50 motion, Plaintiff introduced sufficient evidence to sustain a verdict. Although the Court disapproves of the manner in which [plaintiff counsel] delivered his summation, it cannot conclude that his unusual antics prejudiced Merck. The majority of questionable conduct raised by Merck and noted by the Court did not touch on the key evidence of the case. No matter how much counsel criticized the FDA’s ability to regulate drugs or mocked the defense witnesses’ courtroom demeanor, those comments had little impact on the fundamental questions the jury was called upon to answer, that is, whether the evidence showed that Fosamax’s risks outweigh its benefits and whether the drug caused Plaintiff to develop ONJ. . . .

[Plaintiff counsel's] conduct easily could have inured to the detriment of his client, and only with hindsight does it appear to an outsider that his outlandish behavior led to a verdict for the Plaintiff. . . .

[A]fter summation, the Court amended its jury charge to include a rather strongly-worded instruction that specifically stated that [plaintiff counsel's] statements were contrary to law and that, in the event it thought damages were warranted, it should arrive at the figure which would fairly compensate Plaintiff for her injury. The Court is confident that any prejudice resulting from Mr. Douglas’ summation was dispelled by the curative instruction. . . .

Merck points to the size of the damage verdict and the fact that it surpassed by $3 million the amount suggested by [plaintiffs'] counsel as evidence that the Court’s instruction on damages was disregarded and the verdict was punitive in nature. . . . The verdict was unreasonably high, but the Court is not convinced that the large verdict was a result of counsel’s summation. The jury is not bound to reach a damage verdict at or below the amount suggested by Plaintiff’s counsel. Considering that the curative instruction regarding punitive damages was pointed and timely, the $8 million verdict is more likely explained by a jury out of touch with the amount of money that would reasonably compensate Plaintiff for her injuries, than a jury seeking to punish Merck.

For the foregoing reasons, the Court does not believe that Mr. Douglas’ behavior at trial prejudiced Merck to a sufficient degree as to warrant a new trial. . . .

Merck's motions for a new trial and for judgment as a matter of law are denied. Nevertheless, the Court believes the $8,000,000 verdict is excessive and orders a remittitur. Plaintiff has the choice between a new trial on damages and a reduced verdict in the amount of $1,500,000. Plaintiff shall notify the Court within twenty-one (21) days from the date of this Order whether she accepts the reduced verdict or chooses a re-trial on the issue of damages. . . .

Wise -- and just. I predict Mrs. Boles will accept the $1.5 million. Now, consider this, from the first Boles trial -- the one that ended with a runaway jury, and a mistrial, after deadlock:



Seems the holdout [Juror No. 5] had it just right.