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New Jersey Fosamax Lawsuit Results in Defense Verdict

A New Jersey jury has returned a defense verdict for Merck in the first state court trial of a Fosamax lawsuit that alleged the osteoporosis drug caused the plaintiff to develop a painful and debilitating jaw injury, known as osteonecrosis of the jaw (ONJ)

The trial involved a complaint was brought by Alison Rosenberg, 67. It was the fourth Fosamax trial to reach a jury in the United States, but the first tried in a state court.

Merck & Co., the manufacturer of Fosamax, has now successfully defended their medication in three of the cases, but was hit with a $8 million jury award in one of the cases, which is now on appeal.

Fosamax (alendronate sodium) is an oral bisphosphonate medication, which has been associated with decay of the jawbone when taken long-term or at high doses. With a very long half-life of 10 years, most of the Fosamax claims argue that dose accumulation over time increases the risk of ONJ; a debilitating jaw disease that causes the jaw bone to decay and can result in bone showing through the skin. In some cases full or partial jaw removal is required.

The decision by the New Jersey jury in the Superior Court for Atlantic County found that Rosenberg’s dental and jaw problems were not caused by Fosamax. At trial, Merck argued that Rosenberg had a long history of dental problems unrelated to the use of Fosamax and that she also used steroid medications which may have contributed to her jaw injury.

Merck continues to face more than 1,100 Fosamax jaw lawsuits, most of which have been consolidated and centralized for pretrial proceedings in the U.S. District Court for the Southern District of New York as part of an MDL or multidistrict litigation. The findings of these early trials, known as bellwether cases, are not binding in other lawsuits, but are often used to help the parties gauge the relative strengths and weaknesses of their arguments, possibly promoting a Fosamax settlement agreement or other resolution for the litigation.

The first trial, involving a lawsuit brought by Shirley Boles, ended in a mistrial in September 2009, after jurors failed to come to an agreement about whether Fosamax caused ONJ suffered by the plaintiff. Boles’ case was later retried and resulted in an $8 million verdict that Keenan later ruled was excessive. Boles has elected to have another trial rather than accepting Keenan’s reduced award of $1.5 million, and Merck is appealing the verdict on other grounds.

Two other lawsuits, involving claims brought by Judith Graves and Louise Maley, have resulted in defense verdicts.

In federal court, all cases filed throughout the United States are consolidated before U.S. District Judge John F. Keenan, who has indicated that at least four more Fosamax bellwether trials will be held in the MDL before he considers remanding hundreds of cases back to the individual federal district courts where they were originally filed.

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