Articles Posted in Fosamax

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I wrote last week about how nothing is going right in the Fosamax cases. Now something did go right. A jury in New York yesterday awarded $285,000 to a plaintiff for Novartis on the defective design case. Which is fine, really. You only need one reason to win.

Is $285,000 a huge victory in a piece of litigation where some of the injuries are so utterly awful? No. But after a string of losses, a win is a win. Could this be the turning of the tide in these cases? I think Novartis is probably going to bet no and keep on trying these cases. We will see.

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In a blow to all Fosamax plaintiffs, but one in particular, the 2nd Circuit Court of Appeals upheld a defense verdict for Merck on Wednesday, finding no errors in the lower court’s rulings.

At particular issue was the trial court’s exclusion of plaintff’s key experts. The 2nd Circuit said that one of the experts offered irrelevant testimony that was properly excluded, and that the trial court correctly ruled that the expert could not give testimony about the competency of the FDA because the expert lacked the qualifications to do so. As for another expert (awkward writing because I hate using names when I don’t have to, sorry), the court found that the expert’s causation opinion was properly excluded because it was offered in his capacity as a treating doctor.

How does this make sense? Well, Florida law requires plaintiff to show that the treating doctor would have recommended that she stop taking Fosamax if they had known about the risks. Here, the treating doctor did not know she was taking Fosamax during the relevant time period.

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Let’s face it: the bellwether Foxamax trials are going very poorly for Fosamax plaintiffs and their lawyers. Very poorly.

Merck won another jury trial, this time in New York, which blamed osteoporosis drug Fosamax for jaw and dental injuries. This is Merck’s fourth Fosamax victory in five tries. The other: an $8 million verdict (reduced to $1.5 million).

There is no question that these cases have value. Even assuming this abysmal 20% rate is indicia of what we can expect in the future, do the math. These cases have meaningful value. That said, if there is a global settlement of the remaining 2,000 cases, every loss chips away at the value of plaintiffs’ claims.

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Good morning! Here are the week’s top stories:

  • Topamax: Johnson & Johnson is going to pay over $81 million (articles here and here in criminal and civil fines for illegally promoting Topamax. That’s a mere 0.070% of 2009’s $1.15 billion in sales, and 0.039% of 2008’s 2.7 billion in sales (quite the deterrent, eh?). Nevertheless, this compounds J&J’s woes in light of the current Tylenol recall.
  • Topamax Whistleblowers: Here’s an article about the courageous Michigan whistleblowers who made it all happen.
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Here are this week’s stories:

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Here are some stories to follow this week:

  • Tylenol Recall: Johnson & Johnson’s statement about the recall is here, and they have a blog post here (with some interaction with consumers via comments).
  • Vyvanase and Off-label Marketing: John Mack has an interesting post analyzing an ad that might be promoting off-label use through subtle imagery. Is it off-label, or is just a picture? You be the judge!
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Here are the stories we’re following this week:

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The next Fosamax trial, alleging osteonecrosis of the jaw, is likely starting this upcoming Monday, with jury selection today (HT: Shearlings Got Plowed). The case will go before the U.S. District Court for the Southern District of New York (Manhattan).
In the Maley case, Merck tried to obtain a dismissal based on inadequate specific causation, but that attempt failed back in January. Merck contends that the plaintiff does not have osteonecrosis of the jaw but, instead, has a condition known as neuralgia-inducing cavitational osteonecrosis (NICO). Specific diagnosis of plaintiff’s condition is likely to be a big issue at trial.
For more on Fosamax, see prior posts of the Drug Recall Lawyer Blog.

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Here are the stories we’re following this week:

  • Pfizer: CNN reports on why Pharmaceia, Pfizer’s shell company, “took the fall” for Pfizer’s illegal marketing practices
  • Crestor: will the marketing campaign persuade people to take it when they don’t need it? (HT: Patient Safety Blog).
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It’s a winter wonderland here in Maryland, and our office is running on a skeleton crew. Here are the top drug injury-related stories for the past few days: