Tag Archives: $8 Million Boles II Verdict Merck Fosamax Bone Density Osteonecrosis Claims Femur and Jaw Jury Trial US Dist Ct NY Bellweather Case Boles June 25 2010

Most “Atypical” Fosamax® Claims Are Now Subject To Pre-Inclusion “Lone Pine” Medical Documentation Requirements

While there will be no verdict in the pending Scheinberg Fosamax® trial for perhaps two weeks yet (additional older background), I’ve done some more reading (catching up, actually) — and Judge Keenan has ordered that if any of the 4,000 or so Fosamax cases pending allege an injury other than osteonecrosis of the jaw (“ONJ”, or jaw bone death), or osteomyellitis, the claimant will need to provide evidence from a doctor as to (among other things) whether the doctor believes to a reasonable degree of medical certainty that Fosamax caused the alleged injury, and if so, the factual and medical/scientific bases for that opinion.


These sorts of pre-inclusion requirements are called Lone Pine orders — after a seminal case. The idea is that the MDL is more about ONJ and low energy fractures, and less about outlier claims. So the outlier claims ought to be filtered for some degree of veracity testing, prior to inclusion in the ONJ MDL.


The full text (PDF) of Judge Keenan’s Lone Pine order may be found here — but here’s a bit, as to the critical time frames:

. . . .Plaintiffs shall produce the documents and Expert Report required. . . above pursuant to the
following schedule:


a. Plaintiffs in cases in which the surname of the first named Plaintiff begins with the letter A through I shall make their productions by February 20, 2013.


b. Plaintiffs in cases in which the surname of the first named Plaintiff begins with the letter J through R shall make their productions by April 22, 2013.


c. Plaintiffs in cases in which the surname of the first named Plaintiff begins with the letter S through Z shall make their productions by June 20, 2013. . . .


The failure to comply with the terms of this Order within the time periods prescribed by this Order may result in the dismissal of the delinquent Plaintiffs’ actions with prejudice. . . .



We will, as ever, keep an eye on this for you. Have a great MLK Day weekend (do something for your community!), and then look for us at the Inaugural!


Fifth Bellwether Fosamax® Trial: Day 3 — Rhoda Scheinberg

Another clearly material consolidated set of federal cases pending against New Merck relates to claims that Fosamax® causes, or is associated with increased risk of ONJ and femur fractures. Here’s an update on those. [Prior case background may be found here.]

The fifth full “test” case — or bellwether, if you will — has been underway in earnest since Tuesday morning of this week, being tried to a jury, in Judge John F. Keenan’s US District courtroom in Manhattan. We will report any verdict, but that may not come for another week or two.

The very able judge has ruled that Rhoda Scheinberg’s lawyers will not be able to seek punitive damages, and that her claims are limited to Merck’s alleged failure to adequately warn about Fosamax risks, and design defects related to the drug.

It is estimated that more than 4,000 such claims are pending in the state and federal courts around the nation. We will keep you up to date — from page 20 of Merck’s latest SEC filed Form 10-Q:

. . . .Merck is a defendant in product liability lawsuits in the United States involving Fosamax (the “Fosamax Litigation”). As of September 30, 2012, approximately 4,005 cases, which include approximately 4,580 plaintiff groups, had been filed and were pending against Merck in either federal or state court, including one case which seeks class action certification, as well as damages and/or medical monitoring. In approximately 1,215 of these actions, plaintiffs allege, among other things, that they have suffered osteonecrosis of the jaw (“ONJ”), generally subsequent to invasive dental procedures, such as tooth extraction or dental implants and/or delayed healing, in association with the use of Fosamax. In addition, plaintiffs in approximately 2,785 of these actions generally allege that they sustained femur fractures and/or other bone injuries (“Femur Fractures”) in association with the use of Fosamax. . . .

When (and if) there is a verdict — you’ll read it here, first.

Boles Fosamax® ONJ Case Settles — By Confidential Agreement


According to a report published in Equities.com, it appears that the latest in-court status conference revealed an agreed settlement of the Boles Fosamax® ONJ claims. Do go read it all, but here is a bit:

. . . .A Fosamax lawsuit filed by a woman who suffered from Fosamax jaw damage has reached a confidential damages agreement. . . .

The plaintiff, Shirley Boles, first brought a claim against Merck & Co., manufacturer of the popular osteoporosis drug, in September 2009, alleging that the drug caused her to suffer from osteonecrosis of the jaw. The first Fosamax jaw lawsuit resulted in a mistrial. In a subsequent trial in June 2010, a jury awarded Boles $8 million in damages—which a judge later deemed excessive, and reduced to $1.5 million. Rather than accepting the reduced amount, Boles sought a third trial which was set to begin this month. However, before the trial commenced, the parties reached a confidential damages agreement. The amount of damages has not been disclosed. . . .

Good news for all involved — and it removes some uncertainty from Merck’s exposure profile here. Even so, the next Fosamax case — Scheinberg — goes to trial on January 15, 2013.

Boles II Fosamax® Trial — $8 Million Unanimous Jury Verdict — Wow!


See the Fosamax® verdict Bloomberg newsfeed, here.

Plainly, I guessed too low, this morning, over at Yahoo! — but I had the arrow pointing in right direction [which (perhaps immodestly) was no mean feat, given the complete loss in Maley v. Merck, entered in the same courtroom, in May 2010. In addition, in one earlier case — Fleming v. Merck, Merck won summary judgment from Judge Keenan]:

. . . .I’ll go out on a limb, here, and despite the earlier mistrial (in Boles I) — I’ll predict low seven figures in damages for Ms. Boles. There are 1,100 additional cases pending, like this one. . . .

Do the math — that’s a “double Vioxx®“. Timothy O’Brien, Mrs. Boles lawyer said tonight that the jury found Fosamax was a “defectively designed” product, and that Mrs. Boles felt “vindicated“. It’s a good thing she didn’t fold, after the first mistrial was declared. I bet Juror No. 5 — the reportedly lone holdout juror, from Boles I — feels vindicated, as well [click from note from Boles I, to enlarge]:

Next Fosamax “bellweather” (or, “bellwether,” if one prefers the Old Middle English spelling!) trial: November 2010 — same courtroom, same very able federal trial judge.