The Fosamax lawsuit suffered a long and slow death. The plaintiffs did not deserve this long and awful ride. But the litigation over a decade later appears to be (nearly) dead. This post was first written in 2013 and has been updated in 2023 and 2024.
September 2024 Foxamax Lawsuit Update
In a ruling that revives these lawsuits, the Third Circuit ruled that the FDA letter denying Merck’s proposed labeling changes for its osteoporosis drug, Fosamax, does not amount to a final agency action that preempts state law “failure to warn” claims. The decision centers on over 500 plaintiffs who allege that Merck failed to provide adequate warnings about the risk of atypical femoral fractures associated with the drug. The court concluded that the New Jersey federal judge wrongly prioritized FDA informal communications over the plaintiffs’ arguments against preemption.