Mistrial called in first Fosamax trial, Texas cases still pending in MDL

The first product liability trial accusing Merck's osteoporosis drug Fosamax of causing jaw bone deterioration ended in mistrial Sept. 11 after a juror complained of being physically threatened.

The case was the first of more than 900 lawsuits against the pharmaceutical company to make it trial.

U.S. District Court Judge John Keenan presides over the Fosamax multi-district litigation court in the Southern District of New York.

Among the cases pending in the MDL are five originally filed in the Eastern District of Texas, according to the district's computer database.

According to court documents, the recent trial involved 71-year-old plaintiff Shirley Boles. After taking the drug to prevent osteoporosis, she claims to have developed jaw problems. Fosamax has allegedly been linked to debilitating necrosis of the jaw bones.

Boles said she developed the problems no later than September 2003.

Merck argued it had no notice of any potential problems until late 2003.

Judge Keenan ruled that the jury could not consider any evidence from after 2003.

That looked favorable for Merck, since it was after 2003 that the company allegedly ignored recomendations from the Food and Drug Adminstration to put warnings on Fosamax.

Merck, which was represented in the Boles case by Paul Strain of Venable and Christy Jones of Butler, Snow, O'Mara, Steves & Cannada, issued a statement contending that most of the jurors sided with the defense.

"The plaintiff failed to prove her case before this jury," said Strain. "The jury notes included one presented to Judge Keenan on Sept. 9 signed by seven of the eight jurors, including the jury foreperson, stating that the seven jurors 'agree that there is no evidence of proof that Fosamax caused Mrs. Boles's injury.'"

The eighth juror was the holdout who claimed to have been threatened. Judge Keenan ordered that deliberations be suspended for a day so the jury could settle down, but they were still not able to come to an agreement. The judge then ordered a mistrial.

The Boles case will be retried next spring. The next Fosamax trial is scheduled for January.

Some speculate that plaintiffs in future trials will be able to submit more evidence than was allowed in the Boles trial.

In the Eastern District of Texas, the cases were all filed in 2007 or early 2008. The MDL, No. 1789 for Fosamax Products Liability Litigation, was created in September 2007.

Several of the area's most well-known attorneys, including Mark Lanier and Richard Laminack, are among lawyers representing the plaintiffs.

Fosamax cases filed in the Eastern District of Texas that have transferred to the MDL: