Trial Over Fosamax Jaw Damage Set to Begin April 19 in New York

A federal judge has denied attempts by Merck & Co. to have a Fosamax lawsuit thrown out, clearing the way for an April 19 trial to move forward involving allegations that the plaintiff developed permanent and debilitating jaw damage from Fosamax side effects.

The case, filed by Louise H. Maley, will be the second Fosamax trial to reach a jury out of hundreds of cases that are currently pending against Merck involving allegations that they failed to adequately research their osteoporosis drug and warn about the risk of a rare jaw condition, known as osteonecrosis of the jaw.

A prior trial, involving a lawsuit over jaw damage from Fosamax filed by Shirley Boles, ended in a mistrial last year, after the jury was unable to reach a unanimous verdict. It is anticipated that the Boles case will be retried later this year.

Both cases were chosen as “bellwether” trials because they would be used to evaluate how juries respond to the evidence in the Fosamax litigation. A third “bellwether” case, involving a lawsuit filed by Bessie Fleming, was dismissed in November, after the Court determined that the plaintiff would be unable to establish that Fosamax caused her jaw damage.

Merck tried to have Maley’s lawsuit dismissed as well, arguing that she could not show specific causation between Fosamax and jaw injuries that developed after taking the drug for eight years. However, in a ruling issued last week, U.S. District Judge John Keenan disagreed and ruled that Maley has enough evidence to allow the case to be presented to a jury.

Judge Keenan indicated in his order that Maley’s trial over Fosamax jaw damage will begin on April 19, 2010 at 10:00 a.m. in the U.S. District Court for the Southern District of New York, in Manhattan.

There are currently more than 900 similar Fosamax jaw damage lawsuits pending against the Merck & Co., and lawyers will be closely watching how the jury in the Maley trial respond to evidence that is likely to be presented throughout many of the other cases.

Fosamax (alendronate sodium), is a member of a class of drugs known as bisphosphonates, and is prescribed for treatment of osteoporosis. Fosamax was approved by FDA in October 1995, and has been used by more than 20 million people. The drug generated over $3 billion in annual sales for Merck before it became available as a generic last year.