Second Round of Fosamax Bellwether Lawsuits Will Go To Trial Next Year

While the third Fosamax bellwether lawsuit is scheduled to go to trial next month, the federal judge presiding over the consolidated litigation has indicated that at least two more cases should be selected for early trials before the Court decides whether to remand hundreds of similar cases to courts throughout the United States for juries to decide whether the osteoporosis drug caused individual plaintiffs to suffer severe and debilitating jawbone damage, known as osteonecrosis of the jaw.

Merck & Co. currently faces about 1,000 Fosamax lawsuits filed on behalf of users who suffered severe jaw damage after using their popular medication. All federal cases are consolidated before U.S. District Judge John F. Keenan for pretrial proceedings in the U.S. District Court for the Southern District of New York as part of an MDL, or multidistrict litigation.

Previously, three cases were selected for early trials in the litigation, known as “bellwether” cases, to assist the parties in gauging how juries will respond to evidence and testimony that is likely to be similar to what will be presented in other cases in the litigation. The outcome of such bellwether trials, are designed to promote Fosamax settlement negotiations or other resolution for the litigation. However, the first two cases considered by a jury have led to mixed results.

The first Fosamax trial, involving a claim filed by Shirley Boles, ended in a mistrial in September 2009. That case was later retried, resulting in an $8 million verdict against Merck in June 2010.

In May, the second Fosamax bellwether case, involving a claim filed by Louise H. Maley, ended in a defense verdict for Merck after the jury determined that the plaintiff did not suffer osteonecrosis of the jaw from Fosamax. That jury agreed with Merck’s position that multiple medical conditions suffered by Maley could have caused her jaw and dental problems, so they never considered whether the drug maker failed to adequately warn about the risk of Fosamax jaw problems.

The third and final bellwether case is currently scheduled to begin October 28, involving a claim brought by Judith Graves.

According to an Order issued by Judge Keenan earlier this month, at least two additional cases will be selected for bellwether trials next year. There are 18 active trial-ready cases remaining in the initial pool of cases from which the parties selected the first three bellwether cases, and the parties have been ordered to each select one case and two backups to serve as replacements in the event that their primary selection does not proceed to trial.

Trial of the Fosamax case selected by the Plaintiffs’ Steering Committee (PSC) has been scheduled to begin on March 14, 2011, and the trial of the case selected by Merck will begin on May 9, 2011.

All of the lawsuits allege that Merck failed to warn patients, doctors and dentists that the use of Fosamax could cause ONJ, a painful and disfiguring jaw injury associated with irreversible death of the jaw bone, resulting in infection and portions of bone becoming exposed inside the mouth. However, each plaintiff must establish that their injury was in caused by side effects of Fosamax and Merck’s failure to provide adequate warnings.