Show Cause Order Issued for Dismissal of Remaining Fosamax Fracture Lawsuits

The federal judge presiding over all consolidated Fosamax femur fracture lawsuits has issued an order that requires hundreds of plaintiffs to show cause why their claims should not be dismissed based on recent rulings.

Fosamax is a widely used medication sold by Merck for treatment and prevention of osteoporosis. However, in recent years, the drug maker has faced product liability lawsuits alleging that plaintiffs suffered sudden femur fractures while using the drug, which typically occur after little or no trauma at all.

Since 2011, all Fosamax lawsuits filed in U.S. District Courts throughout the country involving femur fractures have been centralized as part of a federal multidistrict litigation (MDL) in the District of New Jersey, where U.S. District Judge Joel Pisano has been presiding over coordinated pretrial proceedings.

At one point, more than 1,100 Fosamax cases were pending before Judge Pisano, all involving allegations that Merck failed to adequately warn consumers and the medical community about the potential side effects of Fosamax, which may weaken the femur and result in atypical fractures. However, following prior orders by Judge Pisano that found plaintiffs are barred from pursuing cases for injuries occurring before 2011, only about 500 cases remain in the MDL.

Following additional orders regarding the effects of Fosamax label updates issued in 2011, Judge Pissano issued a show cause order (PDF) on November 6, indicating that remaining plaintiffs must establish why their cases should not also be dismissed.

As part of the coordinated pretrial proceedings before Judge Pisano, small groups of cases were prepared for early trial dates, known as “bellwether” cases, which are designed to test the arguments presented by the parties.

In June 2013, Judge Pisano granted judgement as a matter of law for Merck in one of the bellwether cases involving a pre-2011 injury. The Court found that there was evidence the FDA would not have approved a warning update about the risk of femur fractures prior to the plaintiffs injury.

Following that order, a similar Show Cause Order was issued, which ultimately resulted in the dismissal of several hundred Fosamax cases earlier this year that involved a femur fracture prior to September 14, 2010.

As the parties were preparing remaining bellwether cases involving post-2011 injuries, Judge Pisano granted summary judgment in June 2014, finding that a label update issued by Merck in 2011 was sufficient as a matter of law.

This latest Show Cause Order comes following a motion filed by Merck in August, which called for the remaining cases to be dismissed as well.

Judge Pisano has ordered all plaintiffs claiming that the January 2011 Fosamax label warning about the risk of atypical femur fractures was inadequate and a proximate cause of their injury, have been directed to submit any briefs and supporting papers within 45 days explaining why their lawsuits should not be dismissed.