N.Y. Jury Delivers First Plaintiff's Win in Fosamax Litigation

Mark Hamblett

New York Law Journal

A Southern District of New York jury delivered the first plaintiff's verdict recorded in the multidistrict litigation over the anti-bone loss drug Fosamax. A jury in Judge John Keenan's courtroom took about four hours to decide that Merck & Co. should pay $8 million for present and future pain and suffering to Shirley Boles of Fort Walton, Fla., said Gary Douglas of Douglas & London, who represented Boles along with Timothy M. O'Brien of Levin Papantonio of Pensacola, Fla.

Boles is one of some 900 plaintiffs who filed suit in federal and state courts alleging that instead of offsetting the bone loss associated with menopause, Fosamax caused deterioration of the jawbone. Paul F. Strain of Venable represented Merck. The trial, which began on June 7, was the second for Boles. The first one ended in a mistrial in September after jurors, who could be heard by lawyers arguing vehemently in the jury room, deadlocked 7-1 in favor of the pharmaceutical company.

The case is one of the bellwether cases selected by the court in In Re: Fosamax Products Liability Litigation, 06-md-01789. The first bellwether ended in a defense verdict on May 5. Strain issued a statement Friday saying Merck intended to challenge the verdict as contrary to the evidence and the award as "unjustified and excessive."