A U.S. judge said he would declare a mistrial in a case against Merck & Co over its Fosamax osteoporosis drug if a jury could not reach a unanimous verdict by the end of business on Friday.
U.S. District Court Judge John Keenan in New York was responding to a motion for mistrial on Wednesday by a lawyer for a Florida woman who sued the drug company, claiming Fosamax caused damage to her jaw.
Lawyer Timothy O’Brien, representing 71-year-old Shirley Boles of Walton Beach, Florida, told the court that notes from one woman juror indicated she felt intimidated or threatened.
He described the deliberations as the “most audible” he had encountered. The jury room is enclosed at the back of the courtroom in Manhattan federal court.
“I will ask the jury to come back on Friday and if there is no verdict by 5:30 (p.m.) I will declare a mistrial,” Keenan said in court while the eight jurors were still in the jury room and could not hear him.
After rejecting the motion for mistrial by O’Brien, Keenan called the jury into his courtroom and told them he was giving them a “cooling off period.”
The judge said he had a prior commitment in Washington on Thursday and asked them to return to work on the case late on Friday morning.
The trial in New York is Merck’s first out of some 1,280 plaintiff groups involving almost 900 U.S. lawsuits by patients who claim Fosamax caused the condition known as osteonecrosis of the jaw, or death of jawbone tissue.
Merck attorney Paul Strain, who made reference to an “unsubstantiated claim” of a chair being thrown in the jury room, told the judge that O’Brien’s motion for a mistrial was not well founded.
“What we have is an accusation by one juror,” Strain said. He said it was not endorsed by the other seven jurors.
The jury, which has been deliberating for more than three days, sent a note to the judge on Tuesday saying they could not reach a unanimous decision. He urged them to continue deliberations.
Earlier on Wednesday, Keenan rejected Merck’s effort to dismiss 24 cases alleging that Fosamax causes jaw damage.
He ruled that plaintiffs could introduce testimony by two doctors to show that the drug can cause jaw damage after less than three years of continuous use.
Keenan said the evidence is sufficiently reliable to allow a rational jury to establish such a connection.
He said individual plaintiffs would then be allowed to present expert testimony that Fosamax caused them to suffer such damage, and that such testimony could by itself “make causation a genuine issue of fact for trial.”
The case is In Re: Fosamax Products Liability Litigation 06-md-01789 in U.S. District Court for the Southern District of New York (Manhattan)
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