Saturday, October 23, 2010

There Will Be A THIRD Boles Fosamax® ONJ Trial -- On The Size Of The Damages Awarded


[Ahem. Sorry to shout -- but that is apparently what real news organizations do, when they have a scoop. This appears in no MSM outlet as of the moment. We are first, here -- even out ahead of the official Fosamax® MDL lawyers' website. Okay -- back to the show, here:]

At around 3:30 EDT yesterday, in Manhattan's federal District Court, the lawyers for Shirley Boles filed a short notice (a two page PDF file) that Ms. Boles would seek a new trial, on Fosamax® ONJ damages -- as permitted by the terms of the below order entered at the beginning of the month, by the very-savvy Judge John F. Keenan.

Significantly, the new trial -- Boles III, if you will -- will presume she has been injured by Fosamax, and focus solely on what is an appropriate payment in damages for that injury. More on that in a second, but here is the relevant portion of Judge Keenan's earlier order (an 53 page PDF file):

. . . .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.


Dated: New York, N.Y. | October 4, 2010. . . .

It is still possible that Merck will agree to settle for some number above $1.5 million -- in order to avoid the distraction -- and continuing adverse publicity (perhaps more importantly), of a Boles, the Third, a very high profile trial in New York's federal District Courts. [It is significant, in this regard, that all the arguments will center on "how much" Merck ought to pay -- not whether Merck ought to pay, at all.]

Recall that the Boles II jury awarded $8 million in damages, when Ms. Boles had most recently asked for $5 million. So, will Merck settle, for perhaps $4 million?

Or will it run the risk that a second $8 million (or higher) verdict is entered? More generally, for its part, Merck has appealed even the reduced award. But that appeal will not slow down a retrial on the damages issue. That retrial could come as early as January 2011, given that the very able Judge Keenan -- at nearly 80 years of age -- doesn't handle a full-docket any longer in the Southern District of New York.

He might even be persuaded to schedule the damages retrial before Christmas, as he should be finished with the next bellwether ONJ case, Graves, by the end of November. That trial begins at the end of next week, and I get the sense that Judge Keenan wants to power through the Fosamax Bellwether docket. I admit that I got this one wrong -- I thought she'd take the $1.5 million. Now I bet she wins something north of $2.7 million, from the Boles III damages jury.

Stay tuned.


Anonymous said...

IMHO, Merck would do well to settle quickly. Merck has far too many problems on its corporate plate, and its lawyers seem to have deservedly earned ill will with the judge in this case.

Perhaps Merck ought to get back to what, in theory, is its primary line of business: discovery and development of new pharmaceuticals, or should that read "merger and acquisition of smaller pharmaceutical companies, with resulting layoffs, closings, discontinuation of research and outsourcing"?

condor said...

Heh! -- you got that last part exactly right!

To be fair, I think Merck will want to see the outcome in all six "bellwether" cases, because it will likely do a global settlement, based on some weighted averaging of the outcomes in the six.

So far, one was a win for Merck (Maley); one was a null result (Boles I); another fell to the wayside, so the sides picked a new one (Graves -- trial starting this week); one was a loss for Merck (Boles II -- somewhere between $1.5 million and $8 million), and there are still two beyond these in 2011: Secrest, and Hester.

I'll keep you posted; I'll have a pre-trial run-down posted on Wednesday evening (Graves).