Mistrial Declared in First Federal FOSAMAX® Trial

Mistrial Declared in First Federal FOSAMAX Trial

WHITEHOUSE STATION, N.J. - (Business Wire) Merck & Co., Inc. said today that a mistrial was declared by U.S. District Court Judge John F. Keenan in Boles v. Merck, the first FOSAMAX case to go to trial. This case was the Plaintiffs' Steering Committee's first choice to take to trial. The Boles case was tried in New York federal court and involved a Florida woman who blamed her dental and jaw problems on FOSAMAX. After several days of deliberations by an eight person jury, Judge Keenan declared a mistrial because the jury did not reach a unanimous verdict.

"The plaintiff failed to prove her case before this jury," said Paul Strain of Venable LLP, outside counsel for Merck. "The jury notes included one presented to Judge Keenan on Sept. 9 signed by seven of the eight jurors, including the jury foreperson, stating that the seven jurors 'agree that there is no evidence of proof that FOSAMAX caused Mrs. Boles injury'."

At trial, Merck presented evidence that it acted responsibly and that FOSAMAX was not the cause of Shirley Boles' dental and jaw problems. "Unfortunately, Ms. Boles had medical problems that cause people to develop jaw problems, regardless of whether they were taking FOSAMAX," said Mr. Strain. "She had significant periodontal disease and a history of smoking up to a pack of cigarettes a day, which can result in poor wound healing. The plaintiff would have experienced dental and jaw-related problems whether she took FOSAMAX or not."

"We will be prepared to defend this case again if a retrial is scheduled," said Bruce N. Kuhlik, executive vice president and general counsel of Merck. "We continue to believe that the company provided appropriate and timely information about FOSAMAX to consumers and to the medical, scientific and regulatory communities."

Merck is represented in the Boles case by Paul Strain, Venable LLP in Baltimore, MD, and Christy D. Jones of Butler, Snow, O'Mara, Steves & Cannada, PLLC, Jackson, MS.

Status of Litigation

This is the first FOSAMAX case to go to trial. As of June 30, 2009, approximately 899 cases, which include approximately 1,280 plaintiff groups, had been filed and were pending against Merck in either federal or state court.


FOSAMAX is indicated for the treatment and prevention of osteoporosis in postmenopausal women. FOSAMAX should not be used in patients with certain disorders of the esophagus that delay emptying, who are unable to stand or sit upright for at least 30 minutes, who have low levels of calcium in their blood, or in patients who are allergic to FOSAMAX. Some patients may develop severe digestive reactions including irritation, inflammation or ulceration of the esophagus. Patients who experience new or worsening heartburn, difficulty or pain when swallowing or chest pain should stop taking the drug and call their doctor right away. Patients who develop severe bone, joint and/or muscle pain at any time should contact their doctor.

About Merck

Merck & Co., Inc. is a global research-driven pharmaceutical company dedicated to putting patients first. Established in 1891, Merck currently discovers, develops, manufactures and markets vaccines and medicines to address unmet medical needs. The company devotes extensive efforts to increase access to medicines through far-reaching programs that not only donate Merck medicines but help deliver them to the people who need them. Merck also publishes unbiased health information as a not-for-profit service. For more information, visit http://www.merck.com.

Forward-Looking Statement

This press release contains "forward-looking statements" as that term is defined in the Private Securities Litigation Reform Act of 1995. These statements are based on management's current expectations and involve risks and uncertainties, which may cause results to differ materially from those set forth in the statements. The forward-looking statements may include statements regarding product development, product potential or financial performance.

No forward-looking statement can be guaranteed and actual results may differ materially from those projected. Merck undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise. Forward-looking statements in this press release should be evaluated together with the many uncertainties that affect Merck's business, particularly those mentioned in the risk factors and cautionary statements in Item 1A of Merck's Form 10-K for the year ended Dec. 31, 2008, and in any risk factors or cautionary statements contained in the Company's periodic reports on Form 10-Q or current reports on Form 8-K, which the Company incorporates by reference.