Judge Wants More ‘Bellwether’ Trials In Litigation Over Merck’s Fosamax - Law Blog - WSJ

By Chad Bray

The federal judge overseeing hundreds of lawsuits involving Merck & Co.’s osteoporosis drug Fosamax wants to hear two additional “bellwether” cases beyond the two scheduled for later this year.

For LBers who may not remember, Merck is facing more than 900 cases in state and federal court generally alleging that the use of Fosamax can cause a jaw-destroying condition known as osteonecrosis and that Merck failed to properly warn of this risk. The cases are being heard individually. You can read about the cases here, here and here.

Three cases have gone to trial so far, with Merck winning two. In one case, a jury awarded $8 million to a Florida woman last year, but the judge found the award was excessive in October. A fourth case was dismissed before it reached trial.

In an order late Friday, New York federal John F. Keenan said he needs to hear additional bellwether cases before considering whether to send the remaining cases back to the original courts where they were filed. The federal cases were consolidated before Keenan in federal court in Manhattan. Two bellwether cases are scheduled for March and May.

The judge also has toyed with the idea of appointing a special master to help facilitate settlement of the litigation.

According to Friday’s order, one case should involve a person who was taking Fosamax before Merck updated its label in July 2005 to include a warning that osteonecrosis had been observed in users of bone drugs known as bisphosphonates, such as Fosamax, and claims they developed onset of jaw issues after the label change, the judge said.

The other new bellwether case should involve a person who used Fosamax and claims they developed an injury after the label change.

“We’re happy to try these cases because the jury will see Merck was the only company to change and water down the warning the FDA proposed,” said Timothy O’Brien, who is representing the plaintiffs.

“The company is prepared to vigorously defend these cases in court,” said a Merck spokesman. “We continue to believe the company acted responsibly in researching and developing FOSAMAX and in monitoring the medicine since it has been on the market, and that the company provided appropriate and timely information about FOSAMAX to the medical, scientific and regulatory communities and to consumers.”

via blogs.wsj.com

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