Mistrial declared in first Fosamax trial

September 11, 2009 11:09:16 AM PDT
A federal judge declared a mistrial Friday in the first trial over whether Merck & Co.'s former blockbuster osteoporosis drug, Fosamax, causes painful jaw bone destruction. Jurors in the month-long trial in Manhattan since Monday had been telling the judge via series of notes that they couldn't reach a verdict. Deliberations deteriorated to the point that lawyers waiting in the courtroom could hear screaming coming from the jury room and one female juror said another juror threw a chair at her.

After just an hour of deliberations Friday, Judge John F. Keenan declared a mistrial in the case of plaintiff Shirley Boles.

The 71-year-old Fort Walton, Fla., woman alleged she developed severe dental and jaw-related problems several years after she began taking Fosamax in 1997, including repeated infections that drain through the bottom of her chin, loss of some bone tissue and inability to eat anything but soft food.

Boles' lawyer, Timothy O'Brien, said he expected the case of the retired sheriff's deputy to be retried in the spring, after two other Fosamax cases already scheduled by Keenan.

O'Brien said the judge asked the jury forewoman early Friday afternoon whether jurors were making any progress and could possibly reach a verdict.

"Absolutely not," the forewoman replied, according to O'Brien.

He said the exchange occurred after the judge had given the jury a day off on Thursday, to cool off after the alleged chair-throwing incident, and arguments broke out again Friday.

"The marshall had to go in twice to calm the jury down because they were shouting at each other again," O'Brien said.

A statement Merck issued after the mistrial was declared said that seven of the jurors had signed a note Wednesday indicating they agreed that there was no proof Fosamax caused Boles' injury.

Merck faces lawsuits by roughly 1,500 plaintiffs who allege Fosamax caused the same painful jaw destruction that Boles now has - osteonecrosis of the jaw, in which bone tissue dies and detaches from the gum. That causes difficulty with chewing or wearing dentures, among other problems.

The drug's detailed package insert currently states that both Fosamax and a newer version that combines the drug with Vitamin D "may cause jawbone problems in some people. Jawbone problems may include infection, and delayed healing after teeth are pulled."

Merck attorneys had argued that in Boles' case, other factors were to blame. They cited the woman's history of periodontal disease and smoking up to a pack of cigarettes per day, which they said can retard wound healing.

The trial began Aug. 11 in U.S. District Court for the Southern District of New York, in Manhattan.

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