Fosamax Litigation Update
In the re-trial of the first Fosamax “bell-weather” trial (Boles v. Merck), attorney’s for Merck filed a motion last week to keep Mrs. Boles from introducing evidence, in the form of testimony from one of her doctors, that she may need to have a large section of her jaw surgically removed, to "save her life."
Since the first trial, which resulted in a mistrial, Ms. Boles condition has apparently worsened, to the point where she is apparently unable to eat. Plaintiff’s counsel in his opening statement used the characterization "wasting away" to describe Ms. Boles. According to Mrs. Boles' doctors they are going to have to remove a large section of her rotted, dead jaw bone, and reconstruct her face, so that she will once again be able to consume food orally. At this point, it is assumed that Ms. Boles gets most of her necessary nutrition intravenously.
Merck's lawyers claim in their motion that this development has come as a surprise to them, and are trying to preclude the jury from hearing about it. Merck’s position is best summed up in a portion taken from their motion as follows: “In his opening statement, Plaintiff’s counsel indicated that Plaintiff’s treating oral surgeon –- Dr. Charles Elwell -– will testify that Plaintiff is ‘wasting away’ because her jaw condition prevents her from eating, and that unless Plaintiff has part of her jaw surgically removed, he’s afraid we’re going to lose her" and she’s not going to survive this.”
The presiding judge is expected to rule on the motion next week.
