Secrest To Appeal — In Part, On Allegedly Errant Preemption Instruction: Latest Merck Fosamax® ONJ Verdict

This, from The Wall Street Journal’s Law Blog, yesterday — after the latest Fosamax® ONJ jury’s verdict, in Manhattan:

. . . .Timothy O’Brien [Mrs. Secrest’s trial counsel], of Levin Papantonio Thomas Mitchell Rafferty & Proctor, said Secrest plans to appeal, contending that the judge improperly dismissed a failure to warn claim against Merck and also improperly instructed the jury that a product is presumed non-defective if approved by the U.S. Food & Drug Administration. . . .

It remains to be seen whether a new trial will be ordered, but it does intrigue me that Mr. O’Brien is assigning error to the presumption of non-defective status, given that the same instructions were given in Boles I and Boles II — and that resulted in a hung jury, and a facvorable verdict, respectively. We will, as ever, keep you posted.


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