Boles III? Fosamax® ONJ Case Will Very Likely Go To A THIRD Jury -- On Damages -- By Valentines Day 2011

[UPDATED | 01.15.11 -- Corrected error on judge's identification.]

The lawyers for Mrs. Shirley Boles -- in her Fosamax^® ONJ bellwether case -- have filed their answer brief and memorandum of law, overnight -- to stop Merck from delaying the jury re-trial on damages, alone. [Prior backgrounder -- and see here, for the remittitur order.]

Their arguments are pretty convincing, by my lights -- here is some of it:

Design Defect

. . . .As the Court noted, the Supreme Court of Florida adheres to the Restatement (Second) of Torts, and "no Florida court has applied §6 or the 'any class of patients' language advanced by Merck, and others have explicitly declined to recognize the Restatement (Third)." [Order at 17] The Court thus declined to "stitch into decades of Florida tort law one section of a treatise that its courts have shown no apparent interest in adopting over the past twelve years." [Order at 18-19] Nonetheless, the Court specifically found that even if it applied the "any class of patients" standard advocated by Merck, Merck still would not be entitled to judgment as a matter of law in light of the unrefuted testimony of Dr. Furberg. [Order at 19] The risk-benefit analysis cannot be a controlling question of law: Even if the Court's adherence to existing Florida precedent were somehow incorrect, the Court's hypothetical adoption of Merck's current premise -- and speedy rejection of it -- eviscerate Merck's claim. . . .

Foreseeabilty

. . . .Merck construes the statute [Fla. Stat. Ann. §768.1257] to mean that in order for Plaintiff to prove that Fosamax was unreasonably dangerous, she has the burden of introducing evidence to show that the risk of ONJ was foreseeable at the time ofher injury. Florida law on this point is not particularly clear. Regardless, even if Merck is correct that the issue of foreseeability also bears on whether the product is unreasonably dangerous, that burden cannot be any weightier than that which applies to her negligent design claim. Plaintiff has met that burden. . . .

"A mere claim that the district court's ruling was incorrect does not demonstrate a substantial ground for difference of opinion. . . ." Wausau Business Ins. Co. v. Turner Constr. Co., 151 F. Supp. 2d488, 491 (S.D.N.Y. 2001). Instead, a substantial ground "must arise out of a genuine doubt as to whether the district court applied the correct legal standard in its order." Consub Delaware LLC v. Schahin Engenharia Limitada, 476 F. Supp. 2d 305,309 (S.D.N.Y. 2007). . . .

[There are no such grounds, here. . . .]

Thus, Mrs. Boles lawyers have effectively quoted Judge Keenan's Cavanaugh's own prior rulings -- in Boles I and II -- to make plain that these are at best, mixed questions of law and fact. As such, they will almost never properly the subject of immediate appeal -- an interlocutory appeal. Merck will lose here.

More precisely, my prediction is that Judge Keenan Cavanaugh will agree with Mrs. Boles, and will set a date for Boles III -- a juried determination of the proper damages owed to her, for her necrosis of the jaw. The Boles II jury set that figure at $8 million; Judge Keenan Cavanaugh reduced it to $1.5 million, and gave Mrs. Boles the right to seek a new jury verdict, on damages calculations, alone. She has already proven Merck is liable -- the question before the court now, is: for how much? Of course, nothing about Judge Keenan's Cavanaugh's view on damages, nor his order will be permitted to be mentioned in front of this new Boles III jury.

And that could all happen before Valentine's Day 2011 -- depending on Judge Keenan's Cavanaugh's calendar, in Secrest (trial date: March 2011) and Hester (trial date: May 2011) -- the two remaining bellwether Fosamax ONJ trials. Stay tuned.