Fosamax trials End in Mistrial

Fort Walton Beach, FLThe makers of Fosamax say there is no scientific evidence that the drug causes osteonecrosis of the jaw (ONJ), or death of jawbone tissue. However Shirley Boles begs to differ. The 71-year-old Florida woman sleeps with a towel to absorb the pus that oozes from her jaw.

Boles' Fosamax trial was the first of three 'bellwether' trials. However last month it ended in a mistrial after the jury could not come to a unanimous verdict.

The plaintiff, a retired deputy from the Okaloosa County Sherriff's Office, was started on Fosamax after suffering a stress fracture in her foot. She began having problems with her mouth in 2003, prior to Fosamax manufacturer Merck receiving similar reports. Boles sued Merck for $1 million in damages.

According to an accounting of the jury trial in Bloomberg News, litigation began August 12th with opening statements. Deliberations lasted 19 hours, with reports that the jurors were finding in favor of Merck at a ratio of 7 to 1. Reports indicate the deliberations were acrimonious with Theresa Ciccone, identified as Juror #5, serving as the lone dissident in the group.

In a note to US District Court Judge John Keenan that was made public September 11th, Ciccone revealed that she was being "intimidated and threatened." In affidavits, it was revealed that witnesses heard shouting from the deliberation room on September 2nd—the first day of deliberations. It was alleged that a chair was thrown on September 4th, during the second day of deliberations.

According to the Bloomberg report, seven of the eight jurors issued a communiqué to the judge September 9th that said of Ciccone, the lone holdout, "The juror feels that they have found evidence that supports their view about the risks of Fosamax but has found no evidence of proof that Fosamax caused her injury. They agree that there is no evidence of proof that Fosamax caused Mrs. Boles injury."

After rejecting the plaintiff's motion for a mistrial September 9th, Judge Keenan allowed the jury a one-day 'cooling-off period' before recalling the jurors on September 11th and being assured by the jury foreman that there was no hope for a verdict. The judge then allowed plaintiff counsel to renew their motion for mistrial, which was granted.

Boles is hoping for a retrial and the chance to prove her allegation that Fosamax manufacturer Merck misrepresented the drug's safety and failed to warn doctors and patients that it might hamper blood flow to the jaw. The latter is the basis for jawbone-tissue death.

Two other bellwether cases are scheduled for trial in January and April, respectively