Jaw Decay Fosamax Lawsuits Heading to Trial in State and Federal Court

In the coming months, trials will start in federal court and state court for lawsuits filed by individuals who allege they suffered jaw damage from Fosamax, with federal trials in New York City scheduled to begin in April and June, and a New Jersey state court trial scheduled to begin in July.

There are an estimated 900 jaw decay Fosamax lawsuits pending against Merck & Co. throughout the United States. The cases all involve similar allegations that the drug maker failed to adequately research their popular osteoporosis medication and warn about the risk of jaw problems from Fosamax. Long-term use of Fosamax has been linked to a rare and painful condition known as osteonecrosis of the jaw, which involves decay or death of the jawbone, often requiring surgery to remove portions of the jaw.

The federal lawsuits over Fosamax jaw problems are consolidated in an MDL, or multidistrict litigation, before U.S District Judge John Keenan in the Southern District of New York in Manhattan. According to an order issued last week, an upcoming Fosamax trial originally scheduled to begin on April 19, has been delayed for one week due to a scheduling conflict. The jury trial, involving claims filed by Louis H. Maley, is now scheduled to begin on April 26.

The Maley case will actually be the second Fosamax jaw decay trial to be presented to a jury, but could be the first in which a final verdict is reached. In the first Fosamax trial, involving a claim filed by Shirley Boles, a mistrial was ordered after the jury was unable to reach a unanimous verdict over whether side effects of Fosamax caused jaw decay suffered by Boles. A retrial of the Boles case has been scheduled to begin on June 2.

Following the two federal trials, the first state court Fosamax trial is set to begin in New Jersey, with a case filed by Alison Rosenberg scheduled for trial to begin in the Atlantic County Superior Court on July 12. Like Maley and Boles, Rosenberg alleges that she developed debilitating jaw damage after taking Fosamax for a number of years to treat her osteoporosis.

These early trials will serve as “bellwether” cases in the Fosamax jaw decay litigation, which are designed to help gauge how juries will respond to expert testimony and evidence that is likely to be similar to what will be presented in other cases. Depending on the outcome of these cases and how the juries value damages in any cases where the plaintiffs are successful, it could lead to widespread Fosamax settlements or other resolution for the litigation.

In addition to the jawbone decay claims, Merck also faces a growing number of lawsuits over Fosamax femur fractures. Although Fosamax is designed to strengthen the bones and reduce the risk of fractures associated with osteoporosis, the drug has been linked to a number of non-impact femur fractures, which is allegedly caused by Fosamax side effects weakening the ability of the bone to repair itself from microdamage.

In December 2009, Judge Keenan remanded at least one fracture Fosamax lawsuit, removing it from the federal MDL and returning it to the court where it was originally filed for seperate litigation. In his ruling, Judge Keenan stated that the evidence of general causation for the jaw decay lawsuits included in the MDL were substantially different from the case involving fractures from Fosamax.