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Law360 covered arguments by Venable partner Paul F. Strain before U.S. District Court Judge John F. Keenan urging the judge to throw out a recent $8 million judgment against the company handed down by the jury in one of the three bellwether Fosamax trials. Strain argued that Judge Keenan should either grant judgment as a matter of law to Merck or order a new trial on the grounds that Boles' attorney, Gary Douglas, unfairly swayed the jury with an outrageous closing argument.

Strain said Merck would not be happy with any award against it. "We know that the excessive verdict is sufficient basis for a new trial," he said.

Douglas faces possible sanctions for his closing argument, which was recognized in contemporary media coverage as over the top. Merck has agued that Douglas intended to incite the jury to punish the company. “They did seek punitive damages. They don’t even admit it now,” Strain said. Boles had sought $5 million in compensatory damages, but the jury awarded her $8 million.