New York, NYIt's been a long road for Shirley Boles, the 72-year-old retired sheriff's deputy who was known along with her female partner as the "Cagney and Lacey" of the Florida Panhandle. Late last month a jury awarded her $8 million in damages in a retrial of her case against Fosamax manufacturer Merck.
She had asked for $5 million.
Boles' trial had been described as one of the bellwether cases for the 1,500 Fosamax lawsuits awaiting trial. A jury last September ended in a 7-1 deadlock in favor of the defense. In the retrial of Boles' case, the second jury ruled in favor of the plaintiff after four hours of deliberation.
A turning point in the second trial, according to a summary of the trial published online in the 7/6/10 issue of Lawyers Weekly USA, was the appearance of Boles' oral surgeon. The doctor, who comes from Shalimar, Florida, did not attend the first trial in US District Court, Southern District of New York at Manhattan. However, he traveled to New York for the second trial and is credited by the plaintiff's legal team as a significant influence on the favorable outcome of the case for the plaintiff.
Boles was 59 when she was prescribed Fosamax for the prevention of osteoporosis. She remained on the drug for a total of nine years, starting in 1997. Her problems began in 2002, when she had two teeth extracted and developed an infection of the bone marrow in her jaw. The condition was eventually diagnosed as Fosamax osteonecrosis of the jaw, or ONJ, for which she blamed Fosamax manufacturer Merck.
Merck had asserted that poor dental hygiene was a contributing factor, noting that Boles had lost no fewer than 24 teeth by the age of 56.
However, the testimony of the oral surgeon was a turning point. He noted during the second trial that in spite of losing all those teeth, Boles had never experienced a setback to the healing process until the two extractions that coincided with her use of Fosamax.
The surgeon was confident in his opinion that Fosamax caused the condition. After treating Boles for a total of eight years and noting that Boles' jaw failed to respond to other treatments, the witness concluded that Fosamax was to blame.
Lawyers representing Merck had indicated they would seek either a directed verdict or a new trial in post-verdict motions.
In May a jury in the only other Fosamax trial returned a verdict in favor of the defense. Combined with this most recent Fosamax side effects verdict in favor of the plaintiff, there remains no clear trend for future Fosamax ONJ cases. At one win for the plaintiff and another for the defense, it could go either way.
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