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.

The Campbell recall is just one in a series of food recalls happening this month. More recently, cereal giant Kellogg issued a voluntary recall of 28 million boxes of cereal, including its Apple Jacks, Corn Pops, Froot Loops, and Honey Smacks, due to what has been called an “uncharacteristic off-flavor and smell coming from the liner in the package.” Gives the Toucan Sam “Follow Your Nose” tagline a whole new meaning.

Kroger grocery stores recently issued a recall of its Deluxe Chocolate Paradise Ice Cream because the packaging fails to specify that the product may contain tree nuts. Only specific stores reportedly were affected by this recall, including a number of stores in our home state of South Carolina. Marie Callender Cheesy Chicken and Rice frozen meals have been recalled following a salmonella outbreak that has reportedly sickened at least eight people. The Marie Callender recall reportedly affects approximately 800,000 of the single-serve dinners. Finally, 67,000 bags of packaged fresh spinach sold in several states along the East Coast, under names including Krisp-Pak, Lancaster Fresh, Giant, and America’s Choice, have been recalled due to a possible Listeria contamination.

Since 2003, the Red Cross has reportedly been fined more than $21 million and cited a dozen times in what have been called “chronic” blood safety violations. The American Red Cross, one of several organizations responsible for collecting and managing the country’s blood supply, reportedly accounts for approximately 43% of the blood supply in the United States. It sells blood products including red blood cells, plasma, and platelets to various health facilities.

The majority of this latest fine is reportedly related to the mismanagement of certain blood products and violations in the manufacturing process. However, in spite of these oversights, the FDA has said the organization’s blood supply appears to be safe. In fact, according to an American Red Cross spokesperson, 98% of the violations cited by the FDA occurred prior to 2008, at a time when the organization was overwhelmed with staffing cuts. Since then, according to the Red Cross, the group has made significant improvements.

Her attorney, Allen K. Young, has tried to justify his client’s actions with the argument that the Plaintiff was walking in an area she had never been before, and at a time when it was “pitch black” outside. As if this somehow diminishes her own negligence. Young argues that Google failed to warn the Plaintiff that walking routes may be missing sidewalks or pedestrian paths. This failure-to-warn claim has been flatly disputed by Google, which has said every software version for mobile devices has had that disclaimer since Google Maps was launched in 2008.

Although Young has said that there is “enough fault to go around,” which presumably means he recognizes his client is at least partially responsible for her injuries, the absurdity of some liability arguments, and extent some will go to shift blame, continues to surprise.

Although there are no doubt a litany of issues considered by a drugmaker prior to its ceasing production of a particular medication, it’s unfortunate to see such an incredibly useful product withdrawn from needy markets as the result, at least partially, of two anomalous events such as these, neither of which has anything to do with an inherent defect in the drug.

See the indecency here, where Polson Enterprises, The Boating Information Company, complimented a previous post concerning a jury’s awarding $3.8 million to a teenager who was struck by a boat propeller when his friend backed over him in the water. I didn’t actually intend to suggest that boat propellers be redesigned to look something like an oscillating fan, which was essentially what Plaintiff’s counsel argued in that case, so perhaps I need to take a more definitive stand when I believe the Plaintiff’s argument is off base. And so while I pledge to do so in future posts, this is not one such topic. A plaintiff I actually could potentially support is one who takes on Miley Cyrus. Not so much because the tween “role model” allegedly gives lap dances in bars or always seems to be involved in some photo scandal, as those issues are outside the scope of this blog. This time, Miley is in the news for a recall of her jewelry line, which was sold exclusively at Wal-Mart stores, after test results showed the jewelry contained high levels of the toxic metal cadmium.

Although Wal-Mart initially continued to sell the jewelry, reportedly telling the Consumer Product Safety Commission that testing items already on store shelves would be too difficult, it eventually changed its approach, issuing a statement that it had pulled “the few products that did not” comply with its new testing regimen. Studies reportedly have shown that girls of the age of most Cyrus fans, ages 6 to 11, are at higher risk for absorbing more cadmium than other children or adults. In any event, the affected items have, at this point, been pulled from the shelves. Only time will tell if this causes future damage to the Miley Cyrus brand.

Darren McKinney, spokesman for the American Tort Reform Association, reportedly called the verdict “insane.” He said that “to suggest that drugmakers can be held liable for the unhygienic use of a drug is obscene. They went after drug companies because they knew they had the deep pockets.”

Whatever the theory of liability relied upon, it certainly appears as though something inflamed the jury. One possible explanation may be the actions of one of the defendant’s representatives during the trial itself. Reportedly, the jurors were “miffed nobody from the Israel-based [company] attended the trial, and they universally ridiculed” the United States-based company executive who testified about the drug and its uses. The jury forewoman reportedly said of the witness: “Mr. Lea did not impress us. What he said, what he didn’t say, all that stammering. The defendants need to get more aggressive if they want to win some of these cases.”

Both defendants, including the Israel-based Teva Pharmeceutical Industries, have said they will appeal the verdict.