$8 Million Verdict in Jeopardy Because of Plaintiff’s Counsel’s Closing Statement

In a case against pharmaceutical giant Merck that ended with a mistrial in September 2009 when jurors became hopelessly deadlocked, the jury for the second go-round recently awarded the plaintiff $8 million, which was reportedly $3 million more than her attorneys had asked for.

The case was one of several bellwether cases being tried in federal court in Manhattan involving Merck’s osteoporosis drug Fosamax. The company is reportedly facing more than 1,000 cases in state and federal courts in which plaintiffs allege the drug is defectively designed in that it can cause a jaw-destroying condition known as osteonecrosis. According to The Wall Street Journal, of the so-called bellwether cases, one was thrown out last year, a jury recently found in favor of Merck in a second, and a fourth is set to be tried in November.

United States District Judge John Kleenan oversees the federal Fosamax cases. He has set a hearing for September in which Merck will present post-trial motions to overturn the recent verdict. In this regard, it appears as though the plaintiff’s $8 million verdict may be in jeopardy.

Paul F. Strain, counsel for Merck, reportedly has said in a post-trial statement that he believes the jury’s verdict was a result of “plaintiff’s counsel’s inflammatory and prejudicial remarks.” And it appears as though Judge Keenan agrees. Although Merck unsuccessfully moved for a mistrial, arguing that plaintiff’s counsel improperly used his closing statement to encourage the jury to punish Merck with its verdict, Judge Keenan, 80, reportedly told lawyers of the closing outside of the jury’s presence: “I have never heard a more outrageous summation in my life than the one I heard yesterday.” Encouraging words for Merck officials, who recently issued a statement indicating the company’s intent to challenge the jury’s verdict.