Some Plaintiffs Oppose Consolidation of Fosamax Fractured Femur Lawsuits

Some plaintiffs who have filed lawsuits over femur fractures from Fosamax have indicated they oppose efforts by Merck to consolidate other similar cases that have been filed in federal court before one judge, arguing that such consolidation is unnecessary and would slow down cases that are already pending. 

Last month, Merck filed a petition with the U.S. Judicial Panel on Multidistrict Litigation to consoldiate and centralize all Fosamax fractured femur lawsuits that have been filed in federal courts throughout the United States; a procedure known as an MDL or multidistrict litigation.

Although there are already more than 900 Fosamax lawsuits consolidated as part of an MDL in the U.S. District Court for the Southern District of New York, those claims all involve lawsuits over jaw bone problems from Fosamax, known as osteonecrosis of the jaw.

As a result of a growing number of complaints filed against the drug maker by individuals who have suffered a fractured femur from Fosamax, the drug maker has requested that a separate MDL be established and requested that the cases be assigned to Judge Rebecca Doherty in the U.S. District Court for the Western District of Louisiana.

Attorneys for plaintiffs Patrick Welch and Betty Miller have filed motions with the U.S. Judicial Panel on Multidistrict Litigation opposing the move by Merck to form a new MDL for the Fosamax fracture litigation. They argue that the measure will complicate and delay their own cases.

Miller’s Fosamax fracture lawsuit is pending in the Southern District of Illinois before District Judge Michael Reagan and is currently the first such case scheduled for trial, with an anticipated trial date in April 2012. Miller argues that having to go through the MDL process will significantly delay her trial date, and has asked that if the cases are consolidated, that the panel consolidates them in Judge Reagan’s court so she may be able to keep her trial date.

The Welch opposition motion argues that the femur fracture lawsuits should either be rolled into an existing Fosamax MDL, covering alleged cases of involving osteonecrosis of the jaw from Fosamax, or that they should remain independent, as there are not yet enough Fosamax fracture cases to justify their own MDL.

Fosamax (alendronate sodium) is a member of a class of drugs known as bisphosphonates, which have been increasingly associated with these rare fractures, typically occurring with falls from standing height or less.

The FDA added warnings about the risk of bone fractures from Fosamax and other similar bisphosphonate medications in October 2010, requiring drug makers to warn consumers that they should seek immediate medical attention if they experience new groin pain or thigh pain while taking the drug, which can occur weeks or months before a complete fracture of the femur on Fosamax occurs.

Bone fracture lawsuits were previously excluded from the existing Fosamax MDL, which was established in August 2006 for claims filed by individuals who suffered decay of the jaw bone from Fosamax. That 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.

The Fosamax fracture cases were excluded from the jaw injury MDL because it was determined that the evidence of general causation leading to femure fractures would likely differ substantially from cases dealing with jaw bone damage.

The U.S. Judicial Panel on Multidistrict Litigation is scheduled to hear arguments on the motion to consolidate the Fosamax broken femure cases on May 16 in Louisville, Kentucky.