The Fosamax lawsuit suffered a long and slow death. Plaintiffs did not deserve this long and awful ride. But the litigation over a decade later appears to be dead.
The Fosamax class action lawsuit went all the way to the United States Supreme Court. The big issue before the court was whether the issue of federal preemption should be decided by a jury. The Supreme Court sent the case back to the trial court which ruled for Merck on summary judgment this week.
What Is Foxamax?
Fosamax is in a class of drugs known as bisphosphonates. The FDA has approved Fosamax for, among other things, the treatment and prevention of osteoporosis in postmenopausal women.
In 2010, the FDA mandated that bisphosphonate manufacturers revise their labeling to include a warning that atypical femur fractures had been reported in some bisphosphonate users. The FDA took this action shortly after a task force of the American Society for Bone and Mineral Research (“ASBMR”) published a study of the issue of AFFs in bisphosphonate users. The ASBMR updated its analysis approximately three years later.
Lawsuits followed that alleged long-term use of Fosamax from 1999 to 2010 led to atypical femur fractures.
2013 Post on Fosamax Jury Verdict
It took a New Jersey federal jury an hour and twenty minutes to determine that Fosamax did not cause a Plaintiff’s femur fracture. In the first verdict in a Fosamax case where the Plaintiff claims that the osteoporosis drug weakened her thigh bone, the jury said that Plaintiff did not prove her case.
After having taken Fosamax for eight years, Plaintiff, now fifty-eight, fractured her right femur, requiring surgical repair. She sued, alleging that Fosamax caused her atypical femur fracture and that its manufacturer, Merck, failed to warn her doctor about the risk. Merck, pleased with the verdict, stated that the company provided appropriate and timely information about Fosamax to consumers.
Plaintiff’s suit had been transferred to the Fosamax femur fracture MDL, sometimes referred to as “Fosamax II” as an earlier Fosamax MDL was formed to deal with claims of osteonecrosis of the jaw (ONJ). Merck has said that there are about 3,300 Fosamax femur fracture cases, and about 1,230 ONJ cases.
In this case, Merck claimed that Plaintiff was at risk for a “fragility fracture” that Fosamax reduced, but could not eliminate. They further claimed that Plaintiff did not sustain an atypical femur fracture.
This case had been selected for the second bellwether trial in the MDL. The first trial ended in a mistrial after Plaintiff suffered a heart attack.