Fosamax Class Action Lawsuit Did Not Toll Statute Of Limitations in VA

The Supreme Court of Virginia has ruled that a Fosamax class action lawsuit filed on behalf of all consumers throughout the United States who used the popular osteoporosis medication did not toll the statute of limitations for individual plaintiffs who allege that they suffered jaw injuries from side effects of Fosamax.

The appeal stemmed from complaints filed by four residents of Virginia against Merck for failing to adequately warn that use of Fosamax could cause painful and debilitating decay of the jaw bone, known as osteonecrosis of the jaw (ONJ).

Merck currently faces hundreds of similar Fosamax lawsuits, but argued that these plaintiffs filed their complaint too late, after the applicable statute of limitations had expired.

In 2005, a putative class action lawsuit over Fosamax was filed against Merck in the U.S. District Court for the Middle District of Tennessee, seeking to represent “[a]ll persons who consume or have consumed Fosamax.” Although certification of that complaint was subsequently denied and the class action complaint was dismissed, the four Virginia plaintiffs argued that the pendency of the case should delay the running of the Virginia statute of limitations for Fosamax suits, which generally requires that actions be filed within two years.

The plaintiffs filed their Fosamax injury lawsuits in the federal court system more than two years after suffering jaw damage, but while the class action complaint was still pending.

After their lawsuits were dismissed, plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit, which determined that Virginia law applied to the case and asked the Supreme Court of Virginia to determine whether the pending putative Fosamax class action complaint provided the plaintiffs with additional time to file their complaints.

In a decision released last week, the Surpeme Court of Virginia rejected the plaintiffs’ arguments and found that Virginia does not recognize equitable or statutory tolling of the statute of limitations due to a pending putative class action lawsuit filed in another jurisdiction. Therefore, the plaintiffs will be barred from pursuing their claim against Merck.

Fosamax (alendronate sodium), is a member of a class of drugs known as bisphosphonates, which are prescribed for treatment of osteoporosis. Fosamax was approved by the FDA in October 1995, and has been used by more than 20 million people. The drug generated over $3 billion in annual sales for Merck before it became available as a generic in 2010.

In addition to about 1,000 lawsuits filed by users of Fosamax who developed jaw problems, Merck also faces a growing number of Fosamax femur fracture lawsuits filed by individuals who experienced sudden breaks that occurred with little or no trauma at all.