Judge To Give Jury 'Cooling Off' Period In Fosamax Case

-CNN Money

09/09/2009 - A U.S. judge called for a daylong "cooling off" period in a product-liability case over Merck & Co.'s (MRK) osteoporosis drug Fosamax after jury deliberations became tense on Wednesday.

U.S. District Judge John F. Keenan suspended deliberations until 11:15 a.m. EDT Friday 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.

Neither note was read publicly in court.

"It's not unusual during jury deliberations that people disagree each other. There seems to be some disagreement here," the judge told jurors. "I'm going to give you a cooling-off period."

The jurors, five women and three men, have been deliberating since last week over whether Fosamax caused a severe jaw injury suffered by Shirley Boles, a 71- year-old Florida woman.

Outside the presence of the jury, the judge said that he would declare a mistrial in the case if a verdict isn't reached by 5:30 p.m. EDT Friday.

On Tuesday, the judge urged jurors to continue their deliberations after they indicated in four notes that they were at an impasse.

On Wednesday, Timothy O'Brien, who is representing Boles, asked for a mistrial, saying one juror had indicated in a note that she was being intimidated and had been threatened. The judge denied the mistrial motion.

"Frankly, it's the most brutal deliberation or audible deliberation I, as counsel, have have been privy to," O'Brien said.

He noted that shouting could be heard coming from the jury room several times during deliberations.

Paul F. Strain, a lawyer for Merck, opposed the mistrial motion, saying a second note, signed by seven other jurors, didn't seem to support the other juror's claims of intimidation.

Strain said the juror, in her note, indicated she had been the subject of threats of physical violence and had a chair thrown at her. He called her claimes unsubstantiated.

Strain said the court shouldn't declare a mistrial without first inquiring among the jurors whether any threats or intimidation had been made. The judge said he wouldn't do that while deliberations are ongoing.

The Boles case is one of the first of about 900 product-liability cases that Merck is facing in state and federal courts over Fosamax.

The lawsuits generally claim that Fosamax can cause a jaw-destroying condition known as osteonecrosis and that Merck failed to properly warn doctors and the public of the potential risk.

Although most cases of osteonecrosis of the jaw related to Fosamax side effects have occurred after dental work several cases have been reported to occur without any prior dental work. If you are currently taking Fosamax you may be at risk of developing osteonecrosis. If you have been injured by Fosamax side effects you may be entitled to compensation. For more information about your legal rights contact the Fosamax Attorneys of Ennis & Ennis, P.A. today. If you or a loved one have experienced low energy femur fracture due to the use of Foasamax, call the Foasamax attorneys of Ennis & Ennis, P.A. today or fill out our free case evaluation form on this page.