Fosamax Fracture Lawsuit Remanded by MDL Judge

The judge who is presiding over the consolidated federal Fosamax litigation, which involves claims that Merck & Co. failed to warn that their osteoporosis drug may increase the risk of jaw necrosis, has ordered that one lawsuit filed by a plaintiff who alleges that she suffered hip and femur fractures from Fosamax side effects, should be removed from the multidistrict litigation (MDL), and return to the court where it was originally filed for further proceedings.

Merck currently faces more than 900 Fosamax lawsuits filed by former users of their popular medication, who allege that the drug maker failed to adequately research the side effects of their product and warn about potential problems that could occur. The vast majority of the cases involve allegations that long-term use of Fosamax caused osteonecrosis of the jaw, or decay of the jaw bone. However, studies have suggested that Fosamax problems may also include a risk of femur fractures and issues with bone in the hips, shoulders and knees.

On November 20, U.S. District Judge John F. Keenan ordered that Phyllis Molnar‘s Fosamax fracture lawsuit be remanded back to the District of New Jersey, where it was originally filed. Molnar alleges in her lawsuit that Fosamax use caused her to fracture her hip and femur.

A study published in the May/June 2008 issue of the Journal of Orthopedic Trauma found a Fosamax femur fracture pattern that was 98% specific to users of the osteoporosis drug, involving low-energy fractures that were typically caused by falls from a standing height or less. The study also found that the average duration of Fosamax use was longer among those who had signs of these specific femur fractures than those who did not.

The U.S. Judicial Panel on Multidistrict Litigation consolidated all federal lawsuits over Fosamax jaw problems before Judge Keenan for coordinated pretrial proceedings in the U.S. District Court for the Southern District of New York. The first Fosamax trial in the MDL was in September, ending in a mistrial after jurors could not agree on a verdict. The second scheduled Fosamax jaw necrosis trial was dismissed by Judge Keenan last month, after he found that the plaintiff could not establish that Fosamax caused her jaw damage.

Molnar filed to have her Fosamax fracture lawsuit removed from the MDL in September, saying that the leadership attorneys in the MDL were not openly sharing the documentation necessary to pursue her claim. The motion asked Judge Keenan to either force the release of documentation to Molnar’s attorneys, or allow the case to be remanded back to the District of New Jersey, where they will be able to pursue independent discovery. Attorneys for Merck sought to block the remand of the case, saying that the MDL was not limited to Fosamax ONJ lawsuits.

In his ruling in favor of Molnar’s case being remanded, Judge Keenan stated that the evidence of general causation leading to femur and hip fractures would likely differ substantially from cases dealing with jaw bone damage. and justified remand.