Fosamax Update

As you remember, Fosamax, Merck’s osteoporosis drug, is the subject of much litigation. The question presented is whether the drug causes osteonecrosis of the jaw, which is the death of jawbone tissue.

Judge Keenan, ruling over the federal Fosamax cases from his bench in the U.S. District Court for the Southern District of New York (Manhattan), decided that Merck was not entitled to dismissal of the Louise Maley case on the issue of specific causation (essentially, Merck argued that plaintiff could not prove that Fosamax caused her injury. This is different from general causation, which is the argument that Fosamax can cause injuries of this type). The plaintiff did not argue against the dismissal of her strict liability and warranty claims, however. Her case will proceed on a failure to warn claim. See the Order (hat tip: Shearlings Got Plowed). The Maley case will go to trial on April 19, 2010.

So, Plaintiff Maley survived where Bessie Flemings could not—Judge Keenan dismissed her case (set for trial this month) last November on specific causation grounds.
In other Fosamax lawsuit news, Judge Keenan is set to select a replacement bellwether case shortly.

Judge Keenan is overseeing something like 700 lawsuits. As of last year, Merck had about 953 cases pending against them. Everything I have seen from these cases indicates that the plaintiffs have extremely meritorious claims. This is one litigation that I regret not getting into.