Fosamax Femur Fracture Cases to be Selected for Early Discovery in MDL

Lawyers involved in the federal Fosamax litigation over sudden femur fractures have agreed on 33 cases that should be prepared for early trial dates in the federal multidistrict litigation (MDL).

According to an order issued last week by U.S. District Judge Garrett E. Brown, Jr., a telephone conference has been scheduled for tomorrow to discuss and finalize the parties’ selection of bellwether cases, which will be used to gauge the relative strengths and weaknesses of all of the Fosamax femur fracture cases.

The lawsuits involve similar allegations that the side effects of Fosamax increase the risk of atypical femur fractures, which can occur with little or no trauma.

Although Fosamax is designed to strengthen the bones and reduce the risk of fractures associated with osteoporosis, long-term use of the medication has been linked to a risk of these rare, spontaneous fractures of the femur.

A growing number Fosamax cases have been filed since the FDA required new warnings about the risk of femur fractures with Fosamax in October 2010. Consumers are now warned that they should seek immediate medical attention if they experience groin pain, which may develop several weeks before a complete fracture on Fosamax occurs.

Pursuant to Judge Brown’s request, the parties submitted a roster today of cases that both sides agree should be designated for early discovery in the litigation.

The parties previously identified 39 cases for inclusion in the early discovery group, including 19 cases selected by Merck, 19 cases selected by Plaintiffs and one case that was selected by both sides. However, after eliminating those cases that involve defendants other than Merck, such as generic drug makers, and cases in which the individual plaintiffs did not agree to have their case tried in the U.S. District Court for the District of New Jersey in the event it was selected as a bellwether trial case, 33 lawsuits remain.

Following a telephone conference tomorrow afternoon, it is expected that the Court will finalize the selections, allowing the parties to move forward with case-specific discovery.

Although the outcome of the Fosamax bellwether trials would not be binding upon other fracture lawsuits in the litigation, it may influence a possible settlement agreement in the Fosamax cases.

The next full case management conference is expected to take place on January 24, 2012.