BREAKING: The Glynns’ Fosamax® Femur Case Now May (Or May Not) Reach The Finish Line Of Jury Deliberations

UPDATED | 04.22.13 @ 9:45 AM EDT: Judge Pisano has deferred, until May 20, 2013, any decision on Merck’s Saturday motion. He will decide it on the papers, without a hearing on that day. What that means, as a practical matter is that Merck must put on its defense case, starting this morning. Merck will likely ask the judge to decide in its favor — in the same way as outlined below — once again, at the close of Merck’s presentation of its side of the story. We will keep you posted if and when it does so.

[END, UPDATED PORTION]

In a Saturday filing (trial work is seven-days-a-week work!), Merck’s legal team has renewed its motion for judgment as a matter of law. That means the Glynns have put in all their evidence — and concluded their case in chief.

In the simplest terms, the Staturday motion asks the very capable Judge Pisano to decide whether the Glynns have put forward at least a colorable amount of evidence — enough evidence that at least some combination of reasonable jurors could actually find Merck liable for failure to warn, on the evidence the Glynns presented. I must candidly admit that it reads — at first blush — as a pretty strong motion. This is especially true of the attached argument, in Merck’s memo of law. Unless Merck’s lawyers have mischaracterized the evidence thus far put in, I’d say Merck has a reasonable chance of winning at least some aspects of this motion.

In addition, the memo of law argues that there is now actually scant basis to choose New York law (on the question of punitive damages), and that New Jersey law must thus control the punitives question. Judge Pisano earlier reserved ruling on this, until he heard all of the Glynns’ evidence. He now has.

The argument runs that Merck should be allowed to know, as it domiciles its businesses, which state(s) laws will govern its conduct. Merck is a headquartered in New Jersey; its executive officers all work there. That is Merck’s locus of control. Of course, the counter argument is that Merck sells its medicines in every state, and every states’ consumers ought to enjoy the protection of their own states’ laws — when taking drugs that generate billions of dollars of sales a year, for Merck (even if that means MErck may be subject to punitive dmagaes in one state, but in the adjoining state it would not be so subject — on the very same facts).

Back to the main story, though: New Jersey law essentially writes punitive damages out of the equasion for any drug that was actually approved by the US FDA for the purpose or indication it was given. In the Glynn case, Fosamax® was approved for Mrs. Glynn’s presenting condition. If Judge Pisano holds that there are insufficient contacts with New York related to Mrs. Glynn’s case, and that the site of Merck’s headquarters ought to control where the “choice of law” falls — then New Jersey law will apply, and there will almost certainly be no instruction to the jury on punitive damages (unless Merck makes some sort of stunning new admission of bad acts, on cross examination, during its defense case). Not likely; so the jury won’t even be given a form that allows them to find punitive damages against Merck.

We will likely know by late tomorrow afternoon, whether Merck will be required to put on a defense — in short whether Judge Pisano ruled for Merck on its Saturday motion. If Merck is required to put on a full defense in this case, then it will be likely that Judge Pisano will allow the jury to deliberate. He will charge the jury, and see whether a verdict is reached. Even then, he might hold the verdict to be outside the bounds of what any reasonable jury could award on these facts. So, any way one looks at it, the Glynns’ still face a good bit of tough sledding, in my experienced opinion.

Stay tuned, in the morning tomorrow

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