Wednesday, November 17, 2010

More Fosamax® Filings -- Graves ONJ Bellwether Trial Jury Instructions Battle Rages On

The Graves Fosamax® ONJ Bellwether trial has reached an important turning point: it is time for Judge Keenan to decide how the jury will be instructed about the law that applies to this case. This moment is critical, as it influences, if not controls the contours of deliberations, once the case is given over to the jury.

Merck has made a bevy of new filings this afternoon in Manhattan, suggesting that closing arguments could come soon -- here's a portion of the "to and 'fro":


[Mrs. Graves:] On the claim of strict products liability design defect, it is unnecessary for Plaintiff to show that Defendant has been negligent in any way. In fact, Defendant can be found liable even if it was utterly non-negligent.


Moorman v. American Safety Equip., 594 So.2d 795, 800 (Fla. 4th DCA); Ferayorni v. Hyundai Motor Co., 711 So. 2d 1167, 1172 (Fla. 4th DCA).


Merck objects to this proposed instruction. The proposed instruction is misleading because it gives the false impression that Merck may be held liable on a strict liability cause of action even if there was no way that Merck could have known of a risk of ONJ before April 1, 2003. Plaintiff’s complaint alleges for Plaintiff’s strict liability design defect claim that the risk of ONJ was foreseeable. (Complaint at ¶ 20.) Under any theory of liability, Merck is not an insurer of the pharmaceutical products it sells.

While a strict liability failure to warn claim under Florida law does not require a finding of negligence, Florida’s test for strict liability is "to some extent a hybrid of traditional strict liability and negligence doctrine" because it requires a "showing of knowledge or constructive knowledge." Ferayorni v. Hyunda; Motor Co., 711 So.2d 1167, 1172 (Fla. App. 4 Dist. 1998) (emphasis added). Under Florida’s law of strict liability, manufacturers "are not reduced to insurers," and "manufacturers are not required to warn of every risk which might be remotely suggested by any obscure tidbit of available knowledge, but only of those risks which are discoverable in light of the ‘generally recognized and prevailing best’ knowledge available." Id. (emphasis in original).

Plaintiff’s instruction seeks to blur this line and may confuse the jury whether Plaintiff must establish that ONJ was a known or knowable risk of Fosamax use prior to Plaintiff’s injury. . . .

Stay tuned.

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