Friday, October 15, 2010

Friday Fosamax® Litigation Update: Graves ONJ Bellwether Edition

Next Wednesday morning, in Manhattan federal District Court, the very able Judge Keenan will hear oral arguments -- on what types of evidence should be allowed, and what should be excluded, as the next "bellwether" (or test case) Fosamax® ONJ trial, Graves v. Merck, et al. ( US Dist. Ct., S.D.N.Y. Case No. 06-5513) gears up to begin jury selection, in about two weeks, or as early as October 28, 2010. The opening arguments will thus likely be heard on Novemeber 1, 2010 -- in the afternoon.

It will be interesting to see whether Merck's lawyers will make any headway in excluding the evidence that Merck creatively "redefined" a condition called osteopenia (see link; outside the boundaries of accepted FDA and WHO definitions), in order to vastly increase the potential market for Fosamax. [See graphic centered below; click to enlarge it.] To be clear, I see no basis upon which it could be excluded -- it is damaging, but it is so precisely because it is probative -- of intent.

In my estimation, the above sort of evidence was particularly damaging to Merck's claims of "clean hands", and "responsible stewardship" -- as common-sense (if not strictly legal) defenses -- to the injuries the last bellwether plaintiff, Shirley Boles, suffered (verdict subsequently reduced to $1.5 million). From Judge Keenan's order, entered just this morning, then:

. . . .Oral arguments will be heard on the parties' motions in limine on October 20, at 10:45 a.m. . . .

We'll keep you posted.

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