Many outlets (Reuters included) are reporting that the very able Judge Keenan, in Manhattan’s US District Court, has limited the theories Mrs. Secrest may present to the jury at her bellwether Fosamax® ONJ trial, in a few weeks — as to her claims of injury from long-term, uninterrupted use of Merck’s Fosamax. True, this is good news for Merck. But it may not be enough to avoid liability, to be sure. Why? Well. . . .
What is lost in these current reports is that the same limits were present in the first bellwether case — called Boles — and that resulted in an $8 million verdict for Mrs. Boles (subsequently reduced to $1.5 million by Judge Keenan).
In short, a Fosamax design defect claim — without a possibility of punitive damages — was enough, for Mrs. Boles. See pages 14 to 15 of the Judge’s order, from October of 2010 in Boles II:
. . . .Following the mistrial, Merck again moved for judgment as a matter of law under Rule 50(b). On March 26, 2010, the Court granted the motion in part, finding that Plaintiff had failed to establish proximate causation in that she did not introduce evidence from which a reasonable jury could conclude that Plaintiff’s treating physician would not have prescribed her Fosamax even if he had been warned of the risk of ONJ. See In re Fosamax Prods. Liab. Litig., No. 06 Civ. 9455, 2010 WL 1257299, at *4-5 (S.D.N.Y. Mar. 26, 2010). The Court found, however, that Plaintiff had introduced sufficient evidence at trial to support her negligent design and strict liability design defect claims and thus denied Merck’s motion with respect to those claims. . . . .
We will keep you posted as the Secrest trial gets underway, in earnest, in the coming weeks.