Judge cuts award against Merck in Fosamax case

U.S. District Judge John Keenan in Manhattan has lessened a jury award against Merck in a lawsuit over its Fosamax osteoporosis drug to $1.5 million from $8 million. However, he upheld the verdict in the case in favor of Shirley Boles, who claims to have developed osteonecrosis of the after taking Fosamax, and denied Merck's request for a new trial.

Keenan gave Boles the option of either getting a retrial on damages or taking $1.5 million. The first trial ended in a mistrial last year when the jury deadlocked 7-1, Law.com reports.

"A significant damage award is warranted, but the $8 million deviates substantially from what would be reasonable compensation," Keenan wrote. Merck said it will appeal Keenan's refusal to throw out the verdict entirely or to order a new trial.

Merck has maintained that it has evidence that Boles had medical problems that cause people to develop jaw problems, including significant periodontal disease and a history of smoking up to a pack of cigarettes a day. According to the company, clinical trials conducted before and after approval have involved more than 28,000 patients, including more than 17,000 treated with Fosamax.

Merck also had argued for a new trial because of the behavior of one of Boles's lawyers, Gary Douglas, and even Keenan agreed his behavior was odd. "Mr. Douglas delivered his argument in an agitated tone, scuttling about the well of the courtroom, oddly gesturing, singing and laughing, a style that may best be described as manic," Keenan wrote.

"[T]o allow this type of argument and conduct...would be to countenance disorder in my courtroom, undermine the rule of law, and reward misbehavior. This was a trial, not a political campaign, and lawyers are supposed to follow the rules," Keenan said, as quoted by Law.com. However, he added that Douglas' behavior "fell far shy of the standards for professional conduct," and he didn't believe a new trial was warranted. He fined Douglas $2,500, Bloomberg notes.

"We disagree with the jury's verdict and will vigorously defend against plaintiff's claims on appeal. We believe the verdict was contrary to the evidence presented at trial and influenced by plaintiff's counsel's inflammatory and prejudicial remarks," says Paul Strain of Venable LLP, outside counsel for Merck, in a statement. "The plaintiff was at increased risk for dental and jaw problems regardless of her FOSAMAX use."

- see Merck's statement
- read Law.com's coverage
- get more from Bloomberg

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