Here is what Merck asked Judge Keenan to do -- by way of an 11 page letter (that's a full-text PDF of it). Since I wasn't present, I'll never be able to say for certain how much of this relief Judge Keenan granted Merck in the most recently-completed Fosamax® ONJ trial. What is known is that the jury awarded $8 million to Ms. Boles -- even after these skirmishes, instructions and counter-instructions.
I strongly suspect -- based on the matters alleged in the letter -- Judge Keenan gave Merck's lawyers most of what they asked for, in the letter. This is exactly the sort of thing I said (over the weekend, before the letter was made a part of the public electronic court records) a seasoned, sound and able trial judge would do. And he did:
. . . .15 minutes of additional closing argument/response to summation, in favor of Merck. . . . in addition, a set of curative instructions to the jury, and. . . revisions to the verdict form, and jury charge form. . . .
The net effect of all of these remedial measures -- if substantially granted by Judge Keenan -- would be actually to decrease (as opposed to increase), in my opinion, the chances that Merck will get this verdict set aside quickly. Years from now, a reduction, maybe -- but not likely set aside in its entirety. We'll see.
