Merck (NYSE: MRK) has lost its first Fosamax jury trial. A New York jury awarded $8 million in damages to plaintiff Shirley Boles, who claimed her osteonecrosis of the jaw was caused by the bone-building drug. That's $3 million more than the suit had requested--which offers a hint at what Merck might do next.
But first, the verdict. The jury decided that Fosamax was a "defectively designed" product, Boles' lawyer tells the Wall Street Journal. "She felt very vindicated," attorney Timothy O'Brien says. Boles' first attempt with a jury ended in mistrial, and as one of the first Fosamax claims to go to court, her case had been watched closely for clues to each side's legal strategy. Two other bellwether cases have been resolved since, with one tossed out of court and a jury verdict in favor of Merck in the other. The company faces some 1,000 cases claiming that Fosamax can cause osteonecrosis.
Merck plans to fight the verdict, saying that the damages awarded were "excessive" and that the jury was swayed by "plaintiff's counsel's inflammatory and prejudicial remarks." The company already asked for a mistrial, claiming that one of Boles' lawyers used his closing statement to encourage the jury to punish Merck, Bloomberg reports. Though that motion failed, Judge John Keenan did tell lawyers in the case that (as quoted by Bloomberg), "I have never heard a more outrageous summation in my life."
Keenan has already set a briefing schedule, expecting to hear post-trial motions to overturn the verdict in September. Merck's attorney says the company will appeal if those post-trial motions fail.