I wasn’t in the courtroom in Manhattan yesterday, but based on various press reports, I’d wager that the $285,000 failure to warn verdict entered by the jury (backgrounder, there) in Scheinberg v. Merck will not be set aside by the very able Judge Keenan.
Judge Keenan would have to hold, as a matter of law, that no rational jury could possibly have found a failure to warn of the specific risk which afflicted Mrs. Scheinberg’s jaw, while taking Fosamax®. Since Merck’s expert on the matter did not testify live, and Mrs. Scheinberg’s expert did, all the jury had to do was decide that it believed the plaintiff’s expert, live and in person, at trial.
Said another way, if the jury credited live testimony over a cold, written transcript of a Merck expert’s deposition, which it seems likely the jury in fact did do, Judge Keenan is all but precluded by precedent from disturbing the jury’s verdict.
Here’s a bit of the reporting on yesterday’s oral argument, from Thompson/Reuters — do go read it all:
. . . .Paul Strain, of the law firm Venable, said no rational jury could find that the Fosamax label failed to adequately warn plaintiff Rhoda Scheinberg’s doctors of the risks of developing a bone disease called osteonecrosis of the jaw.
But U.S. District Judge John Keenan seemed to be skeptical that Merck had given him enough of a reason to overcome the “high bar” of setting aside the verdict.
“The idea of setting aside a jury verdict is serious business,” Keenan said. . . .
Indeed. While Judge Keenan hasn’t yet ruled on Merck’s post-trial motion, I expect he will — and fairly shortly. Then, Merck is likely to appeal that trial loss, to the Third Circuit — but (in my opinion) it is likely to lose there, too — based on my experience.
Overall, Merck might have done better to have its expert appear live, at trial. That’s just a friendly note for future defense counsel, here.