Legal News

A Chair is Thrown, a Mistrial is Declared

By Ashby Jones

Nothing we come across on a daily basis — the crimes, the lawyer mischief, the zany lawsuits — make us as frustrated, on almost a visceral level, as do trials that end in hung juries. All those billable hours, the wasted witness preparation, the spent judicial resources. We can only imagine how the participants in such mistrials feel, dealing not only with the instant disappointment, but that your-hard-drive-crashed-and-ate-your-term-paper realization that they’ve got to do the whole thing all over again.

For that reason, our sympathies go out to everyone in the first Merck Fosamax trial which, yes, ended in a hung jury earlier Friday. Click here for the story, from Dow Jones Newswires.

The blow probably wasn’t made any easier, we’d imagine, by the fact that the judge presiding over the case, Manhattan federal judge John Keenan, and the lawyers themselves had to have been expecting this.

After all, as we blogged Thursday, Keenan on Wednesday called for a daylong "cooling off period" after the deliberations reached a boiling point. Keenan suspended deliberations until Friday morning and offered to have court security officers escort individual jurors to the subway after two separate notes were sent out of the jury room Wednesday afternoon about the tenor of the deliberations. One juror claimed in a note to have been the subject of physical threats and that a fellow juror made like Bobby Knight and hurled a chair in the room.

The judge declared a mistrial Friday after the jury’s forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, alleging Fosamax caused a rare jaw condition called osteonecrosis, again asked for a mistrial. Merck opposed the mistrial motion.

Paul F. Strain, a lawyer for Merck, said the drug maker intends to file a motion in the next few weeks asking the judge to rule in favor of Merck and dismiss the Boles case.

“We regret very much the jury did not continue their deliberations,” Strain said. The jury appeared to be “seven-to-one in Merck’s favor,” he said.

Timothy O’Brien, a lawyer for Boles, said he expects the Boles case would likely be retried in the spring. A conference has been scheduled for October.

“For Mrs. Boles, we’re going to refine her message, focus a little more on the evidence we have, so we don’t have a three- or four-week trial,” O’Brien said.

Merck is facing about 900 cases in state and federal courts generally alleging that use of Fosamax can cause the jaw-destroying condition osteonecrosis, and that Merck failed to properly warn of this risk. The Boles case was the one of the first product-liability cases to go trial.

Full post as published by Law Blog - WSJ.com on September 11, 2009 (boomark / email).