Monday, November 15, 2010

As The Graves v. Merck Fosmax® ONJ Bellwether Trial Winds Down. . .

The Graves Fosamax® ONJ case is nearing the moment when Judge Keenan, it is thought, will hand it to the jury. Final jury instructions are being batted back and forth by the two sides tonight, suggesting that Merck's defense case is drawing to a close -- then it is perhaps three hours, on each side, for closing arguments.

Then, presumably, Judge Keenan will hand the jury the case, along with the instructions mentioned in the first paragraph. Here is a 25 page PDF file of Mrs. Graves' final proposed jury instruction set; and below is how the defense (Merck) frames the dispute, in portions of its proposed jury instructions:

. . . .Contentions of the Parties

This lawsuit arises out of Judith Graves’ use of Fosamax. Merck manufactured Fosamax. The Plaintiff, Judith Graves, contends that she developed osteonecrosis of the jaw (“ONJ”) on or before March 31, 2003 as a result of her use of Fosamax.

The Plaintiff seeks compensatory damages for her injury. She seeks recovery under two separate theories related to Fosamax’s design.

First, Plaintiff alleges that Merck should be held strictly liable for her injury because it placed Fosamax on the market with a defective design, making it unreasonably dangerous to patients, and that this defective design caused her injury.

Second, Plaintiff alleges that Merck negligently designed Fosamax, that this defective design made Fosamax unreasonably dangerous to patients, and that this defective design caused her injury.

Merck contends that Fosamax did not cause Judith Graves’ injuries, that the scientific evidence does not establish that Fosamax causes ONJ, and that there was no defect in the design of Fosamax. Merck contends, rather, that Plaintiff’s injuries were caused by her own independent health risk factors, and not Fosamax. . . .

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