All federal lawsuits claiming that Fosamax causes low-impact bone fractures have been consolidated for pretrial proceedings as part of a new MDL, or multidistrict litigation, which will be centralized in the U.S. District Court for the District of New Jersey.
The U.S. Judicial Panel on Multidistrict Litigation issued an order on Tuesday establishing the MDL, after hearing oral arguments last week. Judge Garrett E. Brown, Jr. was selected to preside over the cases during pretrial proceedings.
At least 37 Fosamax fracture lawsuits are currently pending in federal district courts throughout the United States, and those cases will be transferred to New Jersey for further litigation. In addition, as new complaints over femur fractures on Fosamax are filed in the federal court system, they will also be added to this new MDL.
The order will have no impact on Fosamax lawsuits over jaw problems, known as osteonecrosis of the jaw, which will remain centralized as part of a different MDL in the U.S. District Court for the Southern District of New York, before U.S. District Judge John F. Keenan.
Merck requested consolidation of Fosamax femur fracture litigation in March, and specifically requested that the cases be sent to Judge Brown in the District of New Jersey, where the company is headquartered.
A number of other plaintiffs sought to have the cases consolidated elsewhere, but the panel agreed that New Jersey was the best place for the cases. Two-thirds of the Fosamax bone fracture lawsuits were already been filed in that district court, and it places the litigation near where hundreds of other Fosamax lawsuits are being handled.
All of the complaints involve similar allegations that side effects of Fosamax, an osteoporosis drug designed to strengthen bones, can increase the risk of atypical thigh bone fractures, which often occur with little or no trauma at all. Plaintiffs argue that Merck failed to adequately warn about the risk of femur fractures from Fosamax, or that users should seek immediate medical attention if they experience groin pain, which may occur several weeks before a complete fracture while on Fosamax.
The MDL panel determined that the actions all involve common questions of fact and that centralization of the cases will serve the convenience of the parties and witnesses, as well as promote the just and efficient conduct of the litigation. Establishing a Fosamax femur fracture MDL is also designed to eliminate duplicative discovery, prevent inconsistent pretrial rulings on discovery and other issues, and conserve the resources of the parties, the lawyers and the court.
In October 2010, the FDA required new warnings about the risk of bone fractures from Fosamax and other similar bisphosphonate medications. Since that time, the number of lawsuits filed by individuals who experienced sudden femur fractures on Fosamax have grown.
There are currently more than 900 Fosamax jaw lawsuits consolidated in New York, as part of an MDL that was established in August 2006. Fosamax fracture lawsuits were previously excluded from that MDL, because it was determined that the evidence of general causation leading to femur fractures would likely differ substantially from cases dealing with jaw bone damage.
The Fosamax jaw litigation is at an advanced stage, as several bellwether trials have already occurred and the presiding judge has indicated that he may consider remanding the cases for individual trials after four more bellwether case are heard before a jury in the MDL.