Back in January 2011, immediately after the very-able Judge Keenan declined to toss the Boles II Fosamax® ONJ verdict in its entirety, Merck took a mid-trial appeal, called an interlocutory appeal -- one I predicted it would lose. It. now. has. lost. that. appeal.
So -- not long after the Secrest bellwether trial ends (at the end of this month, or early next), Judge John F. Keenan will convene a jury, and charge it with only one task: How much damages are ultimately owed to Mrs. Shirley Boles, who originally won $8 million from Merck (reduced to $1.5 million -- by Judge Keenan -- an amount she declined to accept)?
An entirely new federal jury will now decide. From that Boles order, electronically filed today -- into Judge Keenan's trial court docket:
. . . .Petitioner, through counsel, moves, pursuant to 28 U.S.C. § 1292(b), for leave to appeal an interlocutory order of the district court. Upon due consideration, it is hereby ORDERED that the petition is DENIED because an immediate appeal concerning the issues presented therein is unwarranted. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 23-25 (2d Cir. 1990).. . .
Yep -- next up? another Boles hearing; I'll style it Boles III -- a mini-trial, solely on the allowable level of damages against Merck.
[I suppose Merck could appeal this denial, by filing for a writ of cert., with the US Supreme Court (to interpose some additional delay), but that would plainly be a fools' errand, given the above.]
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