Fosamax Chair-Throwing Jury Was Leaning in Merck's Favor

Last Updated Sep 14, 2009 2:22 PM EDT

The headlines have been about the juror who threw a chair during deliberations, but the real issue behind the Fosamax case that just ended in a mistrial is that Merck may have the upper hand.

A judge friday called for a new trial on the issue of whether the osteoporosis drug causes osteonecrosis of the jaw, or jawbone death. The call came after one juror complained that he or she was being intimidated and threatened by other members on the panel, and demanded a police escort to protect him/her from the others upon departure from the court.

But if you ignore the theatrics and actually read the jurors' notes to the judge, you'll see that Merck came within a hair's breadth of seeing a verdict in its favor. While one trial is not a bellwether for them all, there are 1,200 Fosamax cases pending and if the first few go in Merck's favor then the rest could well crumble for pennies on the dollar.

The most important juror note is not this one, which describes the chair-hurling incident, but this one, from jurors 2, 3, 4, 6 and 7. That's a majority of the eight-person panel.

The note says that one juror is not following the judge's instructions because they feel Merck's knowledge about the risks was enough proof to find in favor of the plaintiff. The remainder of the jury wanted to see, in addition, proof that Fosamax actually caused the injury to Shirley Boles:

In the next go-around, you can bet that Merck will lean more heavily on the sections of the case that require the plaintiffs to actually prove that Fosamax causes jaw death, not just the parts that show jaw death crops up when patients take Fosamax.